Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. 10.5.1 With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 with respect to such breach or inaccuracy and (ii) determining whether there has been a breach or inaccuracy of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contrary, the amount of any Losses incurred or suffered by the Indemnified Party shall be calculated after giving effect to (a) any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of any such recovery). Each Indemnified Party shall use commercially reasonable efforts to obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received by an Indemnified Party or any of its Affiliates with respect to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.

Calculation of Losses. 10.5.1 With respect Subject to any representation or warranty contained in this Agreement or any the other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 with respect to such breach or inaccuracy and (ii) determining whether there has been a breach or inaccuracy of such representation or warranty for purposes provisions of this Article 10.11: 10.5.2 Notwithstanding anything contained herein to the contrary, the amount of any Losses incurred or suffered by the Indemnified Party shall be calculated after giving effect to (a) any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of any such recovery). Each Indemnified Party shall use commercially reasonable efforts to obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received by an Indemnified Party or any of its Affiliates with respect to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights. 10.5.4 Each Indemnified Party indemnified party shall use commercially reasonable efforts to mitigate Losses, including seeking recovery under insurance policies and from Third Parties. Any insurance proceeds or recoveries from Third Parties received by any indemnified party with respect to any Losses shall reduce, on a dollar-for-dollar basis, the amount payable to such indemnified party under the indemnification provisions of this Article 11. (b) All indemnification or reimbursement payments required pursuant to this Article 11 shall be reduced to take account of any net Tax benefit to the extent required indemnified party, whether or not claimed by Applicable Law the indemnified party, arising in connection with the accrual, incurrence or payment of any Loss (including the net present value of any Tax benefit arising in subsequent Taxable years, calculated using a discount rate of 8% and assuming the highest applicable combined federal, state and local statutory rate of Tax for the indemnified party in effect for the Tax year in which such indemnification or reimbursement payment is made). (c) If, at any time on or after the Closing Date, an indemnified party receives recoveries under insurance policies or from Third Parties relating to a Loss, or any refund, rebate, return, credit or other similar payment relating to Taxes, for which such Indemnified Party seeks an indemnifying party made an indemnification payment under this AgreementArticle 11, the indemnified party shall promptly notify the indemnifying parties in writing of such receipt and shall remit the full amount of such payment (including any interest thereon received by the indemnified party, but less any Tax payable on the indemnified party’s receipt of such payment) to the indemnifying parties. (d) Sellers shall not be required to make indemnification payments pursuant to this Article 11 for any Loss taken into account in the calculation of, and actually paid pursuant to, any Working Capital Adjustment.

Calculation of Losses. 10.5.1 With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the The amount of any Losses indemnifiable payable under Section 6.9, this Article 10 with respect Section 9.1 or Section 9.9 by the indemnifying party shall be net of any (i) amounts recovered by the indemnified party or its Affiliates under applicable insurance policies, including any captive insurance program of Seller, or from any other Person alleged to such breach or inaccuracy be responsible therefor, and (ii) determining whether there has been Tax benefit actually realized by the indemnified party or its Affiliates (in the form of an increase in cash refunds received or as a breach reduction in Taxes otherwise due) arising from the incurrence or inaccuracy payment of any such representation Loss. If the indemnified party (i) receives any amounts under applicable insurance policies, or warranty from any other Person alleged to be responsible for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein any Loss, 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 contraryamount received by the indemnified party, net of any expenses incurred by such indemnified party in collecting such amount, or (ii) actually realizes or receives any net Tax benefit in the year the Loss were incurred (or in the immediately succeeding year) that was not initially included in the calculation of Loss, then such indemnified party shall promptly pay to the indemnifying party the amount of such net Tax benefit, net of any Losses out-of-pocket expenses incurred by such indemnified party in collecting such amount. (ii) Seller and ▇▇▇▇▇▇▇▇ shall not be liable under Section 6.9, this Section 9.1 or suffered by Section 9.9 for any (A) Loss relating to any matter to the Indemnified Party shall be calculated after giving effect extent that (1) the Purchaser Indemnitees had otherwise been compensated for such matter pursuant to the calculation of Final Working Capital, the adjustment of the Purchase Price under Section 2.2(a) or 2.4 or any other provisions of this Agreement, or (a2) any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered are caused by the Indemnified Party and any of its Affiliates or result from any other Third Party (after taking into account the costs of action that Seller or any such recovery). Each Indemnified Party shall use commercially reasonable efforts Seller’s Shareholder is requested to obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received take by an Indemnified Party Purchaser or any of its Affiliates, or for which Purchaser or its Affiliates with respect to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect theretoprovide consent, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds (B) consequential, incidental, indirect, special, or recoveriesother similar Losses, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, except to the extent such Losses are finally awarded to be payable to a third party by a court of such paymentcompetent jurisdiction, be subrogated to all rights (C) exemplary, punitive, opportunity cost, or other similar Losses, (D) Losses for lost profits or diminution in value, (E) Losses based on any multiple of the Indemnified Party and its Affiliates against any Third Party in respect of the earnings or similar calculation, or (F) Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence that would not exist if not for, or further perfect such subrogation rights. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law aggravated by, any Loss act or wrongful omission of the Purchaser Indemnitees. (iii) Each indemnified party must mitigate in accordance with Legal Requirements any Losses for which such Indemnified Party indemnified party seeks indemnification under this Agreement. (iv) Each indemnified party and its Affiliates shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Losses payable under Section 6.9, this Section 9.1 or Section 9.9 and the indemnifying party shall be deemed subrogated to all such rights of the indemnified party; provided that such obligations and subrogation shall, to the extent waiver of subrogation is permitted by the underlying policies, not provide for or allow claims against Seller, ▇▇▇▇▇▇▇▇ or the other Seller’s Shareholders with respect to claims relating to Environmental Liabilities and the matters set forth in Section 9.13 hereof.

Calculation of Losses. 10.5.1 With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 with respect to such breach or inaccuracy and (ii) determining whether there has been a breach or inaccuracy of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contrary, the The amount of any Losses incurred or suffered by the Indemnified Party subject to indemnification under Section 9.2(a) shall be calculated after giving effect to (a) net of any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party and any of Acquiror or its Affiliates from (including the Surviving Corporation after the Closing) under applicable insurance policies held by the Acquiror or its Affiliates (net of all direct unreimbursed collection expenses). The Acquiror and its Affiliates shall seek full recovery under all insurance policies covering any other Third Party Loss to the same extent as they would if such Loss were not subject to indemnification hereunder, and the Acquiror, Merger Sub and the Company shall not terminate or cancel any insurance policies maintained by the Company for periods prior to the Closing; provided, however, that none of the Acquiror nor its Affiliates shall be obligated to resort to litigation against insurance carriers in order to pursue any insurance claims except in the case of claims in excess of $500,000 where (i) the Acquiror and its Affiliates conclude in good faith after taking into account discussing the costs matter with the Stockholder Representative that they have a reasonable chance of success on the merits or (ii) the Principal Stockholders direct the Acquiror in writing to proceed with litigation and agree in writing to indemnify the Acquiror and its Affiliates for fifty percent (50%) of any such recovery)unreimbursed collection expenses relating thereto that exceed the amount recovered from the insurance company. Each Indemnified Party shall use commercially reasonable efforts to obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received In the event that an insurance recovery is made by an Indemnified Party the Acquiror, Merger Sub, the Surviving Corporation or any of its their Affiliates with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of all direct unreimbursed collection expenses) shall be made promptly to the Stockholder Representative (on behalf of the Principal Stockholders). The amount of any claims or Losses after subject to indemnification pursuant to Article VII or Article IX shall be calculated net of any net Tax benefits actually realized by the Indemnified Party has received in the benefit year of any indemnification hereunder with respect thereto, the Indemnified Party shall pay Loss resulting from the matter giving rise to the Indemnifying Party the amount indemnification claim hereunder. Except for Losses included in a final, nonappealable order or decision issued by a court of such proceeds or recoveries, up competent jurisdiction relating to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any a Third Party Claim, in respect of the no event will Losses include claims for consequential, punitive or incidental damages, including consequential damages for business interruption, lost profits, lost business opportunity or damage to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rightsbusiness reputation. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.

Calculation of Losses. 10.5.1 With In calculating any amount due hereunder in respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materialityof Losses, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 with respect to such breach or inaccuracy and (ii) determining whether there has been a breach or inaccuracy of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contrary, the amount of any Losses incurred or suffered by the Indemnified Party shall be calculated after giving effect to reduced by (a) any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party and under applicable insurance policies, under any of its Affiliates indemnification or similar agreements, or from any other Third Person alleged to be responsible for any Losses or other rights of recovery with respect to such Losses, net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and (after taking into account b) any Tax benefit, saving or reduction in Taxes actually realized by the costs Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment of any such recovery)Losses. Each If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Indemnified Party shall use commercially reasonable efforts to obtain seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to such proceeds or recoveries either prior or subsequent Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seeking seek indemnification under this Agreement. If any such proceeds or recoveries are received by Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any of its Affiliates such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with respect seeking any such recovery if the Indemnifying Party agrees to any Losses after bear the out-of-pocket costs and expenses incurred by the Indemnified Party has received (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the benefit of any indemnification hereunder with respect theretoIndemnifying Party and to the extent permitted under the applicable policy, agreement or right, the Indemnified Party shall pay assign the rights to recovery under such policy, agreement or right to the Indemnifying Party the amount of such proceeds or recoveriesParty, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, which case the Indemnifying Party shallmay pursue recovery under such policy, to the extent of such payment, be subrogated to all rights of the Indemnified Party agreement or right at its cost and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rightsexpense. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.

Calculation of Losses. 10.5.1 All Losses hereunder will be determined net of (a) any Third-Party Awards (b) any Tax refund, Tax credit or reduction in Tax resulting or arising from such Losses, in each case, to the extent realized by the applicable Buyer Indemnitee or Sellers’ Indemnitee (it being agreed that such Tax refund, credit or reduction will be deemed realized for purposes of this Section 9.05 at the time that it is reflected on a Tax Return of the applicable Buyer Indemnitee or Sellers’ Indemnitee); and (c) any amount that specifically pertains to such Loss and is taken into account in the calculation of Closing Working Capital. With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 indemnification claim with respect to Losses some portion or all of which the applicable Buyer Indemnitee or Sellers’ Indemnitee may reasonably be entitled to recover pursuant to a Third-Party Award, such breach Buyer Indemnitee or inaccuracy and (ii) determining whether there has been a breach or inaccuracy of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to Sellers’ Indemnitee, as the contrarycase may be, the amount of any Losses incurred or suffered by the Indemnified Party shall be calculated after giving effect to (a) any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of any such recovery). Each Indemnified Party shall will use commercially reasonable efforts to pursue and recover such Third-Party Award; provided, that nothing herein shall require any Indemnified Party to seek, obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreementmaintain any policy of insurance. If any such proceeds a Tax refund, Tax credit or recoveries are received reduction in Tax is realized as contemplated by an Indemnified the foregoing clause (b) of this Section 9.05, and/or if a Third-Party Award is received, in either case, by the applicable Buyer Indemnitee or any of its Affiliates with respect to any Losses Sellers’ Indemnitee after the Indemnified Party indemnifying party has received the benefit made a payment in respect of any indemnification hereunder with respect theretoLosses, then such Buyer Indemnitee or Sellers’ Indemnitee, as the Indemnified Party shall case may be, will pay an amount to the Indemnifying indemnifying party equal to such Tax refund, Tax credit or reduction in Tax and/or Third-Party the amount of such proceeds or recoveriesAward, up not to exceed the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment related Losses that have been indemnified pursuant to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rightsIX. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.

Calculation of Losses. 10.5.1 With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (ia) calculating the The amount of any Losses indemnifiable for which indemnification is provided under this Article 10 X shall be net of any amounts actually received by such Indemnified Party under insurance policies or with respect to such breach Losses and shall be reduced to take account of any net Tax benefit actually realized by the Indemnified Party arising from the incurrence or inaccuracy and (ii) determining whether there has been a breach or inaccuracy payment of any such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contrary, Losses. In computing the amount of any Losses incurred or suffered by such Tax benefit actually realized, the Indemnified Party shall be calculated deemed to recognize any item of loss, deduction or credit as a result of such indemnified Loss after giving effect the recognition of any other items of loss, deduction or credit. In the event the Ticketmaster Indemnified Parties receive any such insurance proceeds, the amount of such recovery shall be applied first, to reimburse the Ticketmaster Indemnified Parties for their out-of-pocket expenses (aincluding attorney’s fees and expenses) expended in pursuing such recovery, second, to refund any net insurance proceeds received payments made by the Stockholder Indemnifying Parties pursuant to Article X which would not have been so paid had such recovery been obtained prior to such payment, and third, to the Ticketmaster Indemnified Party and Parties. Notwithstanding the foregoing, the terms of this Section 10.6(a) shall in no event obligate Ticketmaster, the Surviving Corporation, the Subsidiaries any of its their Affiliates with respect to such maintain any insurance policy or specific level of coverage under any policy, or permit the Indemnifying Party to withhold any or all Losses (after taking into account any increases in premiums) and until a claim is resolved. (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of any such recovery). Each Indemnified Party party shall use commercially reasonable efforts to obtain such proceeds or recoveries either prior or subsequent take all appropriate steps to seeking indemnification under this Agreement. If any such proceeds or recoveries are received by an Indemnified Party or mitigate any of its Affiliates with respect to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shallincluding, to the extent consistent with sound business judgment, incurring costs only to the minimum extent necessary to remedy the breach which gives rise to the Losses) upon becoming aware of such paymentany event which would reasonably be expected to, be subrogated to all rights or does, give rise thereto; provided, however, that in no event shall the terms of this Section 10.6(b) in any way obligate Ticketmaster, the Company or any of the Indemnified Party and its Affiliates against Company’s Subsidiaries to take any Third Party steps that would, or that could reasonably be expected to, adversely impact in respect any way the operation or financial performance of Ticketmaster, the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence Surviving Corporation, the Subsidiaries or further perfect such subrogation rightsany of their respective Affiliates. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts (c) Ticketmaster, Merger Sub, the Company, the Stockholders’ Representative and the Material Stockholders agree to mitigate treat any indemnification payments received pursuant to this Agreement for all Tax purposes as an adjustment to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this AgreementMerger Consideration.

Calculation of Losses. 10.5.1 With respect to any (a) For purposes of Section 5.2 and Section 5.3, the existence of an inaccuracy or breach of a representation or warranty contained and the amount of Losses arising therefrom shall be determined without giving effect to any qualification of materiality, including by use of “in this Agreement or any other Transaction Document that is qualified by materialityall material respects”, “Material Adverse Effect” ”, or a derivative thereofwords of similar effect (“Materiality Qualifiers”). Notwithstanding the foregoing, such qualification will (x) Materiality Qualifiers in Section 2.11(c) shall not be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 with respect to such breach or inaccuracy so disregarded, and (iiy) determining whether there has been the foregoing shall not have any impact on the use of the word “material” as part of the name of a breach or inaccuracy of such representation or warranty for purposes of this Article 10defined term (e.g., Material Contract). 10.5.2 Notwithstanding anything contained herein to the contrary, the (b) The amount of any Losses incurred for which indemnification, compensation or suffered by the Indemnified Party reimbursement is provided under this Article V shall be calculated after giving effect net of any amounts actually recovered under insurance policies (except, solely with respect to (adetermining Losses that any Buyer Party seeks to recover from the Indemnity Escrow Amount for amounts recoverable or for which there is a right of recovery under the R&W Insurance Policy) any net insurance proceeds received by the Indemnified Party and any of its Affiliates or other amounts recoverable from third parties with respect to such Losses (after taking into account any increases in premiums) “Insurance Proceeds”), and (b) any net amounts recovered Tax benefits arising from the incurrence or payment of any indemnifiable Losses by the Indemnified Party and (or its Affiliates), to the extent such Tax benefits are realized, in respect of the Taxable period of such Loss, any prior Taxable period, or any of its Affiliates from any other Third the three succeeding Taxable years, by the Indemnified Party (after taking into account the costs of any such recoveryor its Affiliates). Each Indemnified Party shall use commercially reasonable efforts to obtain make claims under third party insurance policies providing coverage with respect to Losses suffered by such proceeds or recoveries either prior or subsequent to seeking indemnification under this AgreementIndemnified Party. If In the event that any such proceeds or recoveries Insurance Proceeds are received by an Indemnified Party or any of its Affiliates with respect after payment for the related indemnification claim has been made pursuant to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect theretothis Section 5.6(b), then the Indemnified Party shall pay to the Indemnifying Party the an amount of such proceeds or recoveries, up equal to the amount of the Indemnifying Party’s payment, within fifteen (15reduction in Losses that would have been applied pursuant to the first sentence of this Section 5.6(b) Business Days of had such Insurance Proceeds been received at the Indemnified Party’s receipt of time such proceeds or recoveriesindemnification claim was made. 10.5.3 Upon making (c) The Buyer Parties may not recover under Section 5.2(a) for any payment to an Indemnified Party item of Losses in respect of any Losses under this Article 10, the Indemnifying Party shall, event and to the extent of Buyer previously received recovery for such payment, be subrogated to all rights item as a result of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rightsPurchase Price Adjustment. 10.5.4 Each Indemnified (d) Amounts paid by any Party as indemnification payments shall use commercially reasonable efforts to mitigate be treated as adjustments to the extent Purchase Price, including, for the avoidance of doubt, for Tax purposes, unless otherwise required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this AgreementLaw.

Calculation of Losses. 10.5.1 With respect (a) The amount of any Losses payable under this Article VIII by the Indemnifying Party shall be net of any Loss Tax Benefit inuring to the Indemnified Party on account of such Loss. If the Indemnified Party receives any representation amounts under applicable insurance policies, or warranty contained in this Agreement or from any other Transaction Document that is qualified by materialityPerson alleged to be responsible for any Losses, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of then (i) calculating the amount if no indemnification payments by or on behalf of Losses indemnifiable under this Article 10 an Indemnifying Party have been made with respect to such breach Losses, the amount of such Losses shall be reduced by such amounts received under insurance policies or inaccuracy from another Person, net of any costs and expenses (including reasonable fees and expenses of attorneys), deductibles, retentions, or increase in premiums incurred in connection with or as a result of collecting such proceeds or other recoveries, and (ii) determining whether there if an indemnification payment by or on behalf of an Indemnifying Party has been a breach made with respect to such Losses, and such amounts received under such insurance policies or inaccuracy from another Person together with such indemnification payment are collectively in excess of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contrary, the amount of such indemnifiable Losses, then such Indemnified Party shall promptly reimburse the Indemnifying Party who made such payment the lesser of (A) the amount of such excess, net of any Losses costs and expenses (including reasonable fees and expenses of attorneys), deductibles, retentions, or increase in premiums incurred in connection with or suffered as a result of collecting such proceeds or other recoveries, and (B) the amount paid by such Indemnitor to the Indemnitee with respect to such Losses. The Indemnified Party shall use reasonable efforts to collect any amounts available under such insurance coverage. If the Indemnified Party receives a Loss Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall be calculated after giving effect promptly pay to (a) any net insurance proceeds the Person or Persons that made such indemnification payment the amount of such Loss Tax Benefit at such time or times as and to the extent that such Loss Tax Benefit is actually received or realized by the Indemnified Party and any of its Affiliates with respect has not been previously applied to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of any such recovery). Each Indemnified Party shall use commercially reasonable efforts to obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received by an Indemnified Party or any of its Affiliates with respect to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or recoveries, up to reduce the amount of the related Loss. No Indemnifying Party’s payment, within fifteen (15) Business Days of the Party shall have any right to subrogate to any claim any Indemnified Party’s receipt of such proceeds or recoveriesParty may have against any third party. 10.5.3 Upon making any payment (b) The Indemnified Parties shall take, and shall cause their respective Affiliates to an Indemnified Party in respect of any take, all reasonable steps required by applicable Law to mitigate and otherwise minimize their Losses under this Article 10, the Indemnifying Party shall, to the extent reasonably possible upon and after becoming aware of such payment, any event which would reasonably be subrogated expected to all rights of the Indemnified Party and its Affiliates against give rise to any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rightsLosses. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.

Calculation of Losses. 10.5.1 With respect The amount of the Loss of an Indemnified Party as to any representation or warranty contained in which indemnification exists under this Agreement shall be calculated by taking into account (a) the present value, based on a discount rate equal to the mid-term applicable federal rate as determined under Section 1274(d) of the Code at the time, of any Tax benefit actually realized by such Indemnified Party (as defined below) in connection with or as a result of the occurrence of such Loss to the extent the present value of such Tax benefit exceeds the present value of any other Transaction Document Tax to be paid by such Indemnified Party in connection with the indemnification proceeds, (b) any insurance proceeds actually received by such Indemnified Party (and not applied by such Indemnified Party on an equitable basis against any portion of a Loss that is qualified not indemnified hereunder) and increased insurance costs incurred in connection with or as a direct result of the occurrence of such Loss, (c) any indemnification proceeds received by materiality, “Material Adverse Effect” Details Holdings or a derivative thereof, such qualification will be ignored Indemnified Party (including proceeds from the indemnification provisions described in Section 4.9 and deemed not included the indemnification provisions set forth in such representation or warranty for the purposes of (i) calculating the amount Amended and Restated Recapitalization Agreement dated as of Losses indemnifiable under this Article 10 with respect to such breach or inaccuracy October 4, 1997 by and among DI Acquisition Corp., Details Holdings and the stockholders listed on Schedule 1 thereto and (ii) determining whether there has been a breach or inaccuracy the Cuplex Agreement) and (d) if such Loss results from the diminution in value of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contraryIndemnified Party's equity interest in Details Holdings, the amount of any Losses incurred or suffered by the Indemnified Party such Loss shall be calculated based on such Indemnified Party's fully diluted equity interest in Details Holdings at the later of the business day after giving effect the Closing Date or the date such Loss is incurred. If the amount to (a) be netted pursuant to this Section 6.3 against any net insurance proceeds received payment by the Indemnified an Indemnifying Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of any such recovery). Each Indemnified Party amount otherwise required to be paid pursuant to this Article VI shall use commercially reasonable efforts to obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received by an Indemnified Party or any of its Affiliates with respect to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect theretobe undetermined, the Indemnified Party shall pay repay to the Indemnifying Party, promptly after such determination, any amount that Indemnifying Party would not have had to pay (or, in the amount case of a payment by Details Holdings pursuant to section 6.5(a), surrender to Details Holdings for cancellation shares of Class L Stock Details Holdings would not have had to issue) pursuant to this Article VI had such determination been made at the time of such proceeds payment (or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveriesissuance). 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.

Calculation of Losses. 10.5.1 With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materialityEach of the Seller and the Purchaser acknowledges and agrees that, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating this Agreement, Losses shall be calculated based on the amount of Losses indemnifiable that remain after deducting therefrom any (i) insurance proceeds (including proceeds received under this Article 10 the R&W Insurance Policy) to the extent actually received by an Indemnified Party with respect to thereto (net of any reasonable and documented out-of-pocket costs and expenses, deductibles and premium adjustments or increases in obtaining such breach insurance proceeds and any Taxes imposed or inaccuracy and payable in respect of the receipt thereof), (ii) determining whether there has been recoveries actually received by an Indemnified Party under any indemnity, contribution, or other Contract from any unaffiliated third party less any costs and expenses incurred in connection therewith and (iii) any Tax benefits actually realized by a breach or inaccuracy Purchaser Indemnified Party in cash as a result of such representation Losses in the taxable year of the incurrence or warranty for purposes payment of this Article 10. 10.5.2 Notwithstanding anything contained herein to such Losses and the contrarysubsequent taxable year (collectively, the amount of any Losses incurred or suffered by the Indemnified Party shall be calculated after giving effect to (a) any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of any such recovery“Recoveries”). Each The Indemnified Party Parties shall use commercially reasonable efforts to obtain such proceeds Recoveries but only if the Losses relating to such Recoveries would be required to be indemnified hereunder; provided, however, that the foregoing shall not (I) require any Party to maintain any insurance, make any claim for insurance as a condition to any indemnification hereunder or recoveries either prior initiate or subsequent pursue any litigation or claims or otherwise bring any claims to seeking indemnification under this Agreementseek such Recoveries, and (II) be construed or interpreted as a guaranty of any level or amount of insurance or other Recovery with respect to any Losses hereunder. If any such proceeds or recoveries Recoveries are actually received by an Indemnified Party or any of its Affiliates with respect to any Losses after the Indemnifying Party has made a payment to such Indemnified Party has received the benefit of any indemnification hereunder with respect theretoto such Losses, the such Indemnified Party shall pay to reimburse the Indemnifying Party the for an amount of such proceeds or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, to the extent of of, and solely using proceeds of, such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rightsRecovery. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.

Calculation of Losses. 10.5.1 With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the For purposes of (i) calculating determining the amount extent of Losses indemnifiable and limitations on indemnification under this Article 10 with respect to such breach or inaccuracy and (ii) determining whether there has been a breach or inaccuracy of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contrarySection 8.4, the amount of any Losses incurred or suffered by that may be subject to indemnification hereunder will be determined net of (i) the Indemnified Party shall be calculated after giving effect to (a) sum of any net insurance proceeds amounts actually received by the Indemnified Party and any of its Affiliates under insurance policies with respect to such Losses Loss (after taking into account it being understood that neither the Buyer nor the Company shall be under any increases obligation to file any insurance claim relating to such Losses; provided, however, that if the Company has occurrence based insurance coverage in premiums) and (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of any such recovery). Each Indemnified Party shall use commercially reasonable efforts to obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received by an Indemnified Party or any of its Affiliates place with respect to pre-Closing periods the premium for which was paid by Seller or the Company, and the Company or Buyer does not wish to file any Losses after the Indemnified Party has received the benefit of any indemnification hereunder such insurance claim with respect theretoto such policy, the Indemnified Party shall pay to the Indemnifying Party the amount Buyer will promptly notify Seller of such proceeds or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party determination and shall, to the extent consistent with the terms of such paymentthe underlying policies, be subrogated assign to all Seller any rights of the Company to pursue any claim under such policy relating to such Losses; provided, further that Seller shall have no right to access the insurance coverage of the Company or the Buyer with respect to any insurance coverage (occurrence based or claims-made) that is in effect on or after the Closing), and (ii) the amount of any Tax benefit (after first taking into account all other items of income, gain, loss, deduction or credit of such Indemnified Party and its Affiliates against any Third Party in respect of or group) actually realized by the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence (or further perfect such subrogation rights. 10.5.4 Each any consolidated, combined or unitary group of which the Indemnified Party shall use commercially reasonable efforts is also a member) attributable to mitigate the accrual or payment of such Loss to the extent required that such Loss is deductible; such Tax benefit shall be based on the post-Closing Tax position of the Company and shall be certified by Applicable Law a senior manager or partner of an accounting firm representing the Company. In the event that any Tax benefit that has actually reduced Losses under this Section 8.4(b) is disallowed, the Seller shall promptly (i) repay to the Buyer an amount equal to the sum of (ii) the Tax benefit disallowed and (iii) the amount of interest actually paid by the Buyer to a Taxing Authority on account of the disallowance of such Tax benefit. Buyer will not be entitled to any indemnification for any Loss to the extent that the Buyer has recovered such Loss (or has otherwise received an equivalent economic benefit) through the Net Working Capital purchase price adjustment provided for which such Indemnified Party seeks indemnification under this Agreementin Section 1.4 above.

Calculation of Losses. 10.5.1 With respect Notwithstanding anything in this Agreement to the contrary, the existence of any breach of any representation or warranty contained set forth in this Agreement or and the amount of Losses related thereto shall be determined without regard to any other Transaction Document that is qualified by materiality, qualifications therein referencing terms “material,” “materially,” “Material Adverse Effect” or words of similar import set forth therein. 10.5.2 The amount which the Indemnifying Party is or may be required to pay to any Indemnified Party pursuant to this Article 10 shall be determined net of any refund received (or credit received in lieu of such a derivative thereof, such qualification will be ignored and deemed not included refund) of Taxes paid or any net reduction in such representation or warranty for the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 with respect Taxes that otherwise would have been paid by the Indemnified Party as a result of the relevant Loss in the taxable year such Loss is incurred, but, in the case of non-Income Taxes, only to the extent such breach refund (or inaccuracy and (ii) determining whether there has been a breach or inaccuracy credit in lieu of such representation refund or warranty for reduction in Taxes) is received or, in the case of a reduction in taxes, occurs in the taxable year such Loss is incurred. For purposes of this Article 10the preceding sentence, in computing refunds (or credits in lieu of refunds) of Taxes paid or net reduction in the amount of Taxes that otherwise would have been paid, such items shall be offset by any Tax detriments to the Indemnifying Party resulting from, among other things, receipt of any such refunds (or credits in lieu of refunds) of Taxes paid or net reduction in the amount of Taxes that otherwise would have been paid. 10.5.2 Notwithstanding anything contained herein to the contrary, the 10.5.3 The amount of any Losses incurred subject to indemnification hereunder shall be calculated net of any amounts actually recovered under or suffered by pursuant to any insurance policy (other than the R&W Insurance Policy), indemnity, reimbursement arrangement, contribution agreement or contract pursuant to or under which such Indemnified Party is a party or has rights (but in no event shall the amount of such Losses exceed the Escrow Amount). If the Indemnified Party shall be calculated after giving effect to (a) any net insurance proceeds received by the Indemnified Party and any of its Affiliates receives such a recovery or payment with respect to such Losses (a Loss after taking into account any increases payment is made pursuant to this Article 10 in premiums) and (b) any net amounts recovered by the Indemnified Party and any of its Affiliates from any other Third Party (after taking into account the costs of connection with any such recovery). Each Indemnified Party shall use commercially reasonable efforts to obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received by an Indemnified Party or any of its Affiliates with respect to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect theretoLoss, the Indemnified Party shall pay to the Indemnifying Party lesser of (i) the amount of such proceeds recovery or recoveries, up to payment and (ii) the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, paid by the Indemnifying Party shall, (whether through withdrawals or releases from the amounts held pursuant to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence Escrow Agreement or further perfect such subrogation rightsotherwise) within thirty (30) days after receipt thereof. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to take all measures as required under applicable Legal Requirements to mitigate the Losses that are indemnifiable hereunder. 10.5.5 Notwithstanding anything to the contrary in this Agreement, the Seller shall have no liability under this Article 10 with respect to any (i) Taxes of the Buyer Indemnified Parties with respect to a taxable period (or portion thereof) beginning after the Closing Date (other than as a result of any inaccuracy in or breach of the representation set forth in the first sentence of Section 5.16.4 or in Section 5.16.9(iv) or 5.16.10) or (ii) Taxes (x) resulting from any transaction taken at the direction of the Buyer or any Affiliate thereof on the Closing Date following the Closing outside of the ordinary course of business or (y) in connection with the Debt Financing (including any transfer of Debt Financing proceeds or assumption (or guarantee) of obligations related to the Debt Financing). 10.5.6 No Indemnified Party shall be entitled to any indemnification under this Agreement to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under (a) the applicable Losses were taken into account in determining the Adjusted Closing Consideration pursuant to Article 3 or (b) the applicable Losses have otherwise previously been satisfied or paid, including pursuant to another provision of this Agreement.

Calculation of Losses. 10.5.1 With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the amount of All Losses indemnifiable under this Article 10 IX will be determined net of (a) any Third Party Awards actually recovered by the applicable Seller Indemnitee or Buyer Indemnitee with respect to the specific Loss claimed, (b) any Tax refund, Tax credit or reduction in Tax resulting or arising from such breach Losses, in each case, to the extent, and solely to the extent, realized by the applicable Buyer Indemnitee or inaccuracy and Sellers’ Indemnitee (ii) determining whether there has been a breach it being agreed that such Tax refund, credit or inaccuracy of such representation or warranty reduction will be deemed realized for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein Section 9.09 at the time that it is reflected on a Tax Return of the applicable Buyer Indemnitee or Sellers’ Indemnitee) to the contrary, the amount of any Losses incurred or suffered extent not then disputed by the Indemnified Party shall be calculated after giving effect to applicable taxing authority or Governmental Authority, (ac) any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect amount that specifically pertains to such Losses (after taking Loss and is taken into account any increases and reflected in premiums) and (b) any net amounts recovered by the Indemnified Party and any calculation of its Affiliates from any other Third Party (after taking into account Closing Working Capital as shown on the costs of any such recovery)Final Closing Statement. Each Indemnified Party Buyer Indemnitee or Seller Indemnitee, as applicable, shall use commercially reasonable efforts to obtain seek full recovery under all applicable insurance policies that may cover a Loss to the same extent as they would if such proceeds Loss were not subject to indemnification or recoveries either prior other recovery hereunder. In the event that a Tax refund, Tax credit or subsequent to seeking indemnification under reduction in Tax is realized as contemplated by the foregoing clause (b) of this Agreement. If any such proceeds Section 9.09, a Third Party Award is actually recovered by the applicable Seller Indemnitee or recoveries are received by an Indemnified Party or any of its Affiliates Buyer Indemnitee with respect to a specific Loss for which any Losses after the Indemnified Party such Buyer Indemnitee or Seller Indemnitee has received the benefit of any indemnification hereunder with respect theretobeen fully indemnified or otherwise recovered fully hereunder, the Indemnified Party shall pay then a refund equal to the Indemnifying Party the amount of such proceeds or recoveries, up to the aggregate net amount of the Indemnifying Party’s paymentTax refund, within fifteen Tax credit or reduction in Tax or recovery (15after reduction for all costs and expenses incurred in connection with obtaining such recovery) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, shall be made promptly to the extent of such payment, be subrogated to all rights of applicable Buyer Indemnitee or Seller Indemnitee providing the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence indemnity or further perfect such subrogation rightsother recovery. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.

Calculation of Losses. 10.5.1 With respect (a) No Purchaser Indemnitee or Seller Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Losses has been included in the final determination of the Final Closing Amounts. (b) Each Indemnified Party shall, and shall cause their respective Affiliates to, take reasonably prudent steps consistent with customary business practices to mitigate any representation Losses arising out of or warranty contained in relating to this Agreement or the transactions contemplated hereby after becoming actually aware of the incurrence of such Losses, (c) The amount of any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty Loss for the purposes of which an Indemnified Party claims indemnification under this Agreement: (i) calculating the amount of Losses indemnifiable under this Article 10 shall be reduced by any insurance proceeds actually received from third-party insurers with respect to such breach Loss; (ii) shall be reduced by any reduction in Taxes actually paid (or inaccuracy any increase in any Tax refund actually received) by the Indemnified Party as a result of the incurrence or payment of such Loss in the taxable year of the incurrence or payment of such Loss, or in any prior taxable year; and (iii) shall be reduced by indemnification or reimbursement payments actually received from third-parties with respect to such Loss, net, in the case of each of clauses (i) and (ii) determining whether there has been a breach or inaccuracy above, of any reasonable costs associated with the recovery of such representation amounts. In the event any Indemnified Party actually recovers any insurance proceeds, indemnity payments or warranty for purposes any third-party recoveries in respect of any Losses, in each case at any time subsequent to any indemnification payment pursuant to this Article 10. 10.5.2 Notwithstanding anything contained herein to the contraryX, the amount of any Losses incurred or suffered by the such Indemnified Party shall be calculated after giving effect thereafter promptly reimburse the Indemnifying Party for any indemnity payment made up to (a) any net insurance proceeds the amount actually received by the Indemnified Party and (net of any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered costs, fees or expenses incurred by the Indemnified Party in collecting such amount). (d) Except with respect to those actually awarded and paid on account of a Third Party Claim, and identified as such in connection with such award, no party shall be liable for punitive, exemplary, speculative or remote damages, or any damages based on any multiple of its Affiliates earnings or revenue or loss of profits, whether based on contract, tort, strict liability, other Law or otherwise and whether or not arising from any other Third Party (after taking into account the costs of any such recovery). Each Indemnified Party shall use commercially reasonable efforts to obtain such proceeds party’s sole, joint or recoveries either prior concurrent negligence, strict liability or subsequent to seeking indemnification under this Agreement. If any such proceeds or recoveries are received by an Indemnified Party or any of its Affiliates with respect to any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveriesother fault. 10.5.3 Upon making any payment to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement.