Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. (i) In calculating amounts payable to any Contributor Indemnitee or Regency Indemnitee (each such person, an “Indemnified Party”) for a claim for indemnification hereunder, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant or agreement and shall be computed net of (A) payments actually recovered by the Indemnified Party under any insurance policy with respect to such Losses or from any other Person alleged to be responsible therefore and (B) any prior or subsequent actual recovery by the Indemnified Party from any Person with respect to such Losses. (ii) The Indemnified Party must use commercially reasonable best efforts to mitigate in accordance with applicable Law any Loss for which the Indemnified Party seeks indemnification under this Agreement, including cooperating with the Indemnifying Party to take all commercially reasonable measures to mitigate the consequences of the related breach. (iii) Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 to the extent Losses result or arise from environmental invasive testing of soil, water or any other parts of the environment that can contain contaminants with respect to any assets of the Acquired Companies (“Environmental Test”), unless (A) such Environmental Test is (w) required by Environmental Laws, (x) requested by a Governmental Authority with authority under Environmental Laws, (y) requested by a prospective or direct or indirect purchaser of, or third party providing financing for, Regency or any of its Affiliates, or any of the Acquired Companies or (z) necessary in connection with a bona fide expansion, reconfiguration, maintenance, dismantling, or repair of the assets of any of the Acquired Companies, or (B) there exists visual (or other sensory) or physical evidence that is manifest and would cause a reasonably prudent Person to suspect that there exists pollution or contamination in the soil or groundwater. (iv) The Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 with respect to any Losses or alleged Losses to the extent that such Losses or alleged Losses were taken into account in the determination of Closing Date Net Working Capital. (v) Except as required by applicable Law following a final determination within the meaning of Section 1313 of the Code, any indemnity payment under this Agreement shall be treated as an adjustment to the Final Contribution Consideration for Tax purposes.

Calculation of Losses. (i) In calculating amounts payable to any Contributor Stockholder Indemnitee or Regency Parent Indemnitee (each such person, an “Indemnified Party”) for a claim for indemnification hereunder, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant or agreement and shall be computed net of (Ai) payments actually recovered by or on behalf of the Indemnified Party under any insurance policy (other than the R&W Policy) with respect to such Losses or from (provided, however, that (A) the amount of any such payments shall be adjusted to account for the cost incurred by an Indemnified Party for increased insurance premiums (other Person alleged to be responsible therefore than in connection with the R&W Policy) and (B) nothing contained herein or otherwise shall create any obligation on the part of any Indemnified Party to pursue any insurance recovery with respect to any Losses other than under the R&W Policy; (ii) any prior or subsequent actual recovery by the Indemnified Party from any Person with respect to such Losses. Losses (ii) The provided, however, that nothing contained herein or otherwise shall create any obligation on the part of any Indemnified Party must use commercially reasonable best efforts to mitigate in accordance with applicable Law pursue any Loss for which the Indemnified Party seeks indemnification under this Agreement, including cooperating with the Indemnifying Party to take all commercially reasonable measures to mitigate the consequences of the related breach. (iii) Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 to the extent Losses result or arise from environmental invasive testing of soil, water or any other parts of the environment that can contain contaminants with respect to any assets of the Acquired Companies (“Environmental Test”), unless (A) such Environmental Test is (w) required by Environmental Laws, (x) requested by a Governmental Authority with authority under Environmental Laws, (y) requested by a prospective or direct or indirect purchaser of, or third party providing financing for, Regency or any of its Affiliates, or any of the Acquired Companies or (z) necessary in connection with a bona fide expansion, reconfiguration, maintenance, dismantling, or repair of the assets of any of the Acquired Companies, or (B) there exists visual (or other sensory) or physical evidence that is manifest and would cause a reasonably prudent Person to suspect that there exists pollution or contamination in the soil or groundwater. (iv) The Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 recovery with respect to any Losses other than under the R&W Policy); and (iii) the amount of any net Tax benefit, which shall be measured by actual cash Tax savings, that is attributable to any deduction or alleged Losses loss resulting from or arising out of the relevant Loss and that is actually realized by the Indemnified Party during or prior to the extent taxable year in which the Indemnified Party receives the relevant indemnification payment. In addition, each Indemnified Party shall make commercially reasonably efforts to mitigate any Losses that an Indemnified Party asserts under this Article X within a reasonable period of time following the discovery by such Indemnified Party of the fact, event or circumstances giving rise to such Losses or alleged Losses were taken into account in (and, for an indemnified Person that is not a natural person, the determination of Closing Date Net Working Capital. (v) Except as required by applicable Law following a final determination within the meaning of Section 1313 of the Code, any indemnity payment under this Agreement shall be treated as an adjustment bringing to the Final Contribution Consideration attention of a responsible officer thereof of such fact, event or circumstance). In the event that an Indemnified Party shall fail to make such commercially reasonable efforts to mitigate any such Losses, then notwithstanding anything else to the contrary contained herein, the indemnifying Party shall not be required to indemnify any Indemnified Party for Tax purposessuch portion of any Loss that could reasonably have been avoided if the Indemnified Party had made such efforts.

Calculation of Losses. (ia) In calculating amounts payable Any indemnity payment made by an Indemnifying Party to any Contributor Indemnitee an Indemnified Party pursuant to Sections 10.1 or Regency Indemnitee (each such person, an “Indemnified Party”) for a claim for indemnification hereunder, the amount of any indemnified Losses 10.2 shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant or agreement and shall be computed net of (Ax) payments any amounts actually recovered by the Indemnified Party under any applicable insurance policy with respect to such Losses policies or from any other Person alleged to be responsible therefore and for the matters underlying such indemnity payment less (By) any prior related costs and expenses, including the aggregate cost of pursuing any related insurance claims plus any related increases in insurance premiums or other chargebacks; provided, however, that notwithstanding anything in Section 10.3(c) to the contrary no party shall have any obligation to seek to recover any insurance proceeds or to initiate a lawsuit against any other Person in connection with making a claim under this Article X. If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for the matters underlying such indemnity payment subsequent actual recovery to an indemnification payment by the Indemnifying Party, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by the Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party from any Person with respect to such LossesParty. (iib) The Each Indemnified Party must shall use commercially reasonable best efforts to mitigate in accordance with applicable Law any Loss for which that the Indemnified Party seeks asserts or is reasonably likely to assert under this Article X upon a responsible officer of any Indemnified Party becoming aware of any event that would reasonably be expected to give rise to such assertion. In the event that the Indemnified Party shall fail to make, or cause to be made, any such commercially reasonable efforts to mitigate any such claim or liability, then notwithstanding anything to the contrary contained in this Agreement, the Indemnifying Party shall not be required to indemnify any Indemnified Party for that portion of any Losses that would reasonably be expected, individually or in the aggregate, to have been avoided if the Indemnified Party had made such efforts. (c) Each Indemnified Party shall, use all commercially reasonable efforts to collect any and all amounts available under insurance coverage or from any other Person alleged to be responsible for any Losses payable under Section 10.1, and shall take such actions in such respect as the Indemnifying Party may reasonably request. If the Indemnified Party receives any payment from the Indemnifying Party in respect of any Losses pursuant to Section 10.1 or 10.2 and the Indemnified Party could have recovered all or part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such payment. (d) No Indemnifying Party shall be liable pursuant to Sections 10.1 and 10.2 in respect of any Loss if such Loss would not have arisen but for, or to the extent any Loss is increased as a result of, (i) the passing of, or a change in, a Law or a change to any written interpretation of the Law or administrative practice of any Governmental Authority occurring on or after the Closing or (ii) the change by statute or by any regulatory or other official auditing standards body of any accounting policy applicable to the applicable Indemnified Party. (e) No Indemnifying Party shall be liable to any Indemnified Party in respect of any Loss under this Article X to the extent such Loss is attributable to, or to the extent any Loss is increased as a result of, any (i) act, omission, transaction, or arrangement carried out at the written request of or with the written approval of such Indemnified Party, (ii) act, transaction or arrangement carried out by or on behalf of such Indemnified Party if such act, transaction or arrangement was not commercially reasonable independent of such Indemnified Party’s rights to indemnification under this Agreement, including cooperating with the Indemnifying Party to take all commercially reasonable measures to mitigate the consequences of the related breach. or (iii) Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 to the extent Losses result or arise from environmental invasive testing breach by such Indemnified Party of soil, water or any other parts of the environment that can contain contaminants with respect to any assets of the Acquired Companies (“Environmental Test”), unless (A) such Environmental Test is (w) required by Environmental Laws, (x) requested by a Governmental Authority with authority under Environmental Laws, (y) requested by a prospective or direct or indirect purchaser of, or third party providing financing for, Regency or any of its Affiliates, or any of the Acquired Companies or (z) necessary in connection with a bona fide expansion, reconfiguration, maintenance, dismantling, or repair of the assets of any of the Acquired Companies, or (B) there exists visual (or other sensory) or physical evidence that is manifest and would cause a reasonably prudent Person to suspect that there exists pollution or contamination in the soil or groundwater. (iv) The Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 with respect to any Losses or alleged Losses to the extent that such Losses or alleged Losses were taken into account in the determination of Closing Date Net Working Capital. (v) Except as required by applicable Law following a final determination within the meaning of Section 1313 of the Code, any indemnity payment obligations under this Agreement shall be treated as an adjustment to the Final Contribution Consideration for Tax purposesor any obligations entered into pursuant hereto.

Calculation of Losses. (ia) In calculating amounts payable to any Contributor Indemnitee or Regency Indemnitee (each such person, an “Indemnified Party”) for a claim for indemnification hereunder, the The amount of any indemnified Losses for which indemnification is provided under this Article VIII shall be determined without duplication net of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant or agreement and shall be computed net of (A) payments amounts actually recovered by the Indemnified Party under any insurance policy with respect to such Losses policies or from any other Person alleged to be responsible therefore and (B) any prior or subsequent actual recovery by the Indemnified Party from any Person otherwise with respect to such Losses. , (ii) The be net of any indemnification paid by any third party and (iii) be reduced by any Tax benefits actually realized by the Indemnified Party must to the extent the claim for which indemnification is sought gives rise to a deductible loss, credit or expense in the taxable period when incurred or in the three (3) subsequent annual taxable periods, as calculated on a with and without basis. The Purchaser Indemnified Parties shall use commercially reasonable best efforts to mitigate in accordance seek full recovery under all insurance policies covering any Loss and from other parties. In the event that an insurance or other recovery is made by any Purchaser Indemnified Party with applicable Law respect to any Loss for which the any such Person has been indemnified hereunder, then such Purchaser Indemnified Party seeks indemnification under shall promptly pay to the Seller (or one or more accounts designated by the Seller) an amount equal to such recovery. (b) Notwithstanding anything to the contrary elsewhere in this Agreement, including cooperating with the Indemnifying no Party shall, in any event, be liable to take all commercially reasonable measures to mitigate the consequences any other Person for consequential damages that were not a reasonably foreseeable consequence of the related breachrelevant breach or for any special or punitive damages except in the case of a Party’s obligation to indemnify an Indemnified Party for amounts actually paid to a third party where consequential, special or punitive damages are awarded pursuant to a third party claim (or settlement thereof) that is subject to indemnification hereunder. (iiic) Contributor shall have no obligation Notwithstanding anything to indemnify the Regency contrary elsewhere in this Agreement, (i) the Purchaser Indemnified Parties or their Affiliates are not entitled to indemnification pursuant to Section 8.1 to the extent Losses result or arise from environmental invasive testing of soil, water or any other parts of the environment that can contain contaminants with respect to any assets of the Acquired Companies (“Environmental Test”), unless (A) such Environmental Test is (w) required by Environmental Laws, (x) requested by a Governmental Authority with authority under Environmental Laws, (y) requested by a prospective or direct or indirect purchaser of, or third party providing financing for, Regency or any of its Affiliates, or any of the Acquired Companies or (z) necessary in connection with a bona fide expansion, reconfiguration, maintenance, dismantling, or repair of the assets of any of the Acquired Companies, or (B) there exists visual (or other sensory) or physical evidence that is manifest and would cause a reasonably prudent Person to suspect that there exists pollution or contamination in the soil or groundwater. (iv) The Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 with respect to any Losses or alleged Losses this Article VIII to the extent that such Losses any matter, amount, item or alleged Losses were taken into account other fact for which they are seeking indemnification hereunder was included as a Current Liability in determining the determination of Closing Date Net Working Capital. Capital Amount or is or relates to an Excluded Item, and (vii) Except as required the Purchaser Indemnified Parties’ rights to indemnification pursuant to this Article VIII on account of any Losses will be reduced by applicable Law following a final determination within the meaning amount of Section 1313 any reserve reflected on the audited consolidated balance sheet of the CodeCompany Entities and their Subsidiaries as of December 31, any indemnity payment under this Agreement shall be treated as an adjustment 2015 included in the Financial Statements which were established for the general category of items or matters similar in nature to the Final Contribution Consideration for Tax purposesspecific items or matters giving rise to such Loss.

Calculation of Losses. (i) In Solely for the purpose of determining the existence of any breach or inaccuracy of any covenant of Target or any Seller set forth in this Agreement or in any agreement, certificate, or instrument executed in connection herewith or pursuant hereto and calculating the amount of any Losses arising out of, in connection with or resulting from any such breach or inaccuracy, any reference to “material adverse effect” or “materiality” or similar qualifiers in such covenants, representations or warranties shall be disregarded. (ii) The amount of any Losses subject to indemnification under this Section 6 shall be net of any amounts payable to any Contributor Indemnitee actually recovered by the Party seeking indemnification or Regency Indemnitee its Affiliates (each such person, an the “Indemnified Party”) for a claim for indemnification hereunder, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant or agreement and shall be computed net of (A) payments actually recovered by the Indemnified Party under any applicable insurance policy with respect to such Losses policies or from any other Person alleged to be responsible therefore and therefor. If the Indemnified Party actually receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Party against whom indemnity is sought (B) the “Indemnifying Party”), then such Indemnified Party shall promptly reimburse the Indemnifying Party for any prior payment made or subsequent actual recovery 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 or costs incurred by such Indemnified Party by reason of making such claim or collecting such amount. Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person with respect alleged to such Lossesbe responsible, for any Losses payable under this Section 6. (iiiii) The Indemnifying Party shall not be liable under this Section 6 for any Losses relating to any matter if and only to the extent that there is included in the Final Closing Date Net Working Capital Statement a specific liability or reserve for such matter. (iv) Each Indemnified Party must use commercially reasonable best efforts to mitigate in accordance mitigate, subject to compliance with applicable Law Law, any Loss for which the such Indemnified Party seeks indemnification under this Agreement, including cooperating with the Indemnifying Party to take all commercially reasonable measures to mitigate the consequences of the related breach. (iii) Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 to the extent Losses result or arise from environmental invasive testing of soil, water or any other parts of the environment that can contain contaminants with respect to any assets of the Acquired Companies (“Environmental Test”), unless (A) such Environmental Test is (w) required by Environmental Laws, (x) requested by a Governmental Authority with authority under Environmental Laws, (y) requested by a prospective or direct or indirect purchaser of, or third party providing financing for, Regency or any of its Affiliates, or any of the Acquired Companies or (z) necessary in connection with a bona fide expansion, reconfiguration, maintenance, dismantling, or repair of the assets of any of the Acquired Companies, or (B) there exists visual (or other sensory) or physical evidence that is manifest and would cause a reasonably prudent Person to suspect that there exists pollution or contamination in the soil or groundwater. (iv) The Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 with respect to any Losses or alleged Losses to the extent that such Losses or alleged Losses were taken into account in the determination of Closing Date Net Working Capital. (v) Except If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to this Section 6 and the Indemnified Party could have recovered all or a part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, then the Indemnified Party shall assign such of its rights to proceed against the Potential Contributor as required by applicable Law following a final determination within are reasonably necessary to permit the meaning Indemnifying Party to recover from the Potential Contributor the amount of such payment, except where such assignment or the enforcement of rights thereunder could reasonably be expected to result in further Losses to any Indemnified Party including the loss of any benefits under any insurance policy, employment relationship, or contract or with any customer or supplier or prospective customer or supplier or is reasonably likely to result in an indemnity claim against Target or Buyer. (vi) An Indemnified Party must, at the Indemnifying Party’s request, cooperate in the defense of any matter subject to indemnification pursuant to this Section 1313 of the Code, any indemnity payment under this Agreement shall be treated as an adjustment to the Final Contribution Consideration for Tax purposes6.

Calculation of Losses. (a) The amount of any Losses payable under this Article 10 by the Indemnifying Party shall be net of any (i) In calculating amounts payable to any Contributor Indemnitee or Regency Indemnitee (each such person, an “Indemnified Party”) for a claim for indemnification hereunder, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant or agreement and shall be computed net of (A) payments actually recovered by the Indemnified Party under any applicable insurance policy with respect to such Losses policies, or from any other Person other than the Indemnifying Party (pursuant to this Article 10) alleged to be responsible therefore therefor, and (Bii) any prior or subsequent actual recovery Tax benefit realized by the Indemnified Party arising from the incurrence or payment of any such Losses. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person other than the Indemnifying Party (pursuant to this Article 10) alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made by such Indemnifying Party in connection with respect providing such indemnification payment up to the amount received by the Indemnified Party (net of any costs or expenses incurred or to be incurred by the Indemnified Party in obtaining such Lossesamount). (b) Notwithstanding anything to the contrary herein, the Indemnifying Party shall not be liable under this Agreement for any (i) consequential, indirect, incidental, special, exemplary or punitive Losses, (ii) The Losses for lost profits or opportunities or (iii) Losses specifically reserved on one of the Balance Sheets. (c) Each Indemnified Party must use its commercially reasonable best efforts to mitigate in accordance with applicable Law any Loss Losses for which the such Indemnified Party seeks indemnification under this Agreement. (d) Each Indemnified Party shall use its commercially reasonable efforts to collect any amounts available under insurance coverage, including cooperating with or from any other Person other than the Indemnifying Party to take all commercially reasonable measures to mitigate the consequences of the related breach. (iii) Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 to the extent Losses result or arise from environmental invasive testing of soilpotentially responsible, water or any other parts of the environment that can contain contaminants with respect to any assets of the Acquired Companies (“Environmental Test”), unless (A) such Environmental Test is (w) required by Environmental Laws, (x) requested by a Governmental Authority with authority under Environmental Laws, (y) requested by a prospective or direct or indirect purchaser of, or third party providing financing for, Regency or any of its Affiliates, or any of the Acquired Companies or (z) necessary in connection with a bona fide expansion, reconfiguration, maintenance, dismantling, or repair of the assets of any of the Acquired Companies, or (B) there exists visual (or other sensory) or physical evidence that is manifest and would cause a reasonably prudent Person to suspect that there exists pollution or contamination in the soil or groundwater. (iv) The Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 with respect to for any Losses or alleged Losses to the extent that such Losses or alleged Losses were taken into account in the determination of Closing Date Net Working Capital. (v) Except as required by applicable Law following a final determination within the meaning of Section 1313 of the Code, any indemnity payment payable under this Agreement shall be treated as an adjustment to the Final Contribution Consideration for Tax purposesArticle 10.

Calculation of Losses. (ia) In calculating amounts payable to any Contributor Indemnitee or Regency Indemnitee (each such person, an “Indemnified Party”) for a claim for indemnification hereunder, For purposes of determining the amount of any indemnified Losses shall be determined without duplication subject to indemnification under this Article IX, and for purposes of any other Loss for which an indemnification claim has been made or could be made under any other determining whether a breach of representation, warranty, covenant or agreement and has occurred, no effect shall be computed net given to any qualifications or limitations regarding materiality, Equityholder Material Adverse Effect or Constituent Company Material Adverse Effect or words of similar effect. (Ab) payments In calculating any amount hereunder in respect of Losses, Losses shall be reduced by any amounts actually recovered by the applicable Buyer Parties or Equityholder Parties (the “Indemnified Party Party”) under applicable insurance policies, under any insurance policy with respect to such Losses indemnification or similar agreements, or from any other Person alleged to be responsible therefore and for any Losses (B) any prior other than an Affiliate of such Indemnified Party), or subsequent actual other rights of recovery by the Indemnified Party from any Person 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. If an Indemnified Party or its Affiliates receives any such recovery after an indemnification payment by the Indemnifying Parties (defined herein) has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Parties for any payment made, but not in excess of the amount received by the Indemnified Party or its Affiliates. (iic) Notwithstanding any other provision of this Agreement, in no event shall any Indemnified Party be entitled to indemnification pursuant to this Article IX, or to make a claim for breach of any other provision of this Agreement or to any other remedy at Law or in equity, to the extent any Losses were attributable to such Indemnified Party’s own gross negligence or willful misconduct. The Indemnified Party must use shall take commercially reasonable best efforts steps to mitigate in accordance with applicable Law any Loss for which upon and after becoming aware of any facts, matters, failures or circumstances that would reasonably be expected to result in any Losses that are indemnifiable hereunder; provided that neither Buyer nor any of the Constituent Companies shall be required to pursue any claims against any customer or employee of Buyer of any Constituent Companies. In the event the Indemnified Party seeks indemnification shall fail to take, or cause to be taken, commercially reasonable steps (subject to the proviso in the immediately preceding sentence), then notwithstanding anything in this Agreement to the contrary, the Indemnifying Parties shall not be required to indemnify the Indemnified Party for that portion of the Loss that could reasonably have been avoided if the Indemnified Party had taken such commercially reasonable steps. (d) For the avoidance of doubt, with respect to Losses resulting from covenant breaches by Equityholders, no Equityholder shall be liable for covenant breaches by any other Equityholder. (e) Notwithstanding anything to the contrary in this Agreement, in no event shall an Indemnifying Party be liable for any special, punitive or exemplary damages, in each case of any kind or nature (in each case other than to the extent such damages are payable pursuant to a Third Party Claim). (f) With respect to any Losses incurred by the Buyer Parties under this Agreement, including cooperating with the Indemnifying Party to take all commercially reasonable measures to mitigate the consequences each Equityholder’s maximum liability shall be capped by 100% of the related breachamount of pre-Tax cash actually paid to such Equityholder in respect of such Equityholder’s Equity Securities under this Agreement. (iiig) Contributor No Indemnified Party shall have no obligation any right to indemnify the Regency Parties indemnification or their Affiliates pursuant to recovery for Losses under Section 8.1 9.2 or Section 9.3 to the extent such Losses result would duplicate any amount or arise from environmental invasive testing of soil, water item included in the calculation or any other parts determination of the environment that can contain contaminants with respect to any assets of the Acquired Companies (“Environmental Test”), unless (A) such Environmental Test is (w) required by Environmental Laws, (x) requested by a Governmental Authority with authority under Environmental Laws, (y) requested by a prospective or direct or indirect purchaser of, or third party providing financing for, Regency or any of its Affiliates, or any of the Acquired Companies or (z) necessary in connection with a bona fide expansion, reconfiguration, maintenance, dismantling, or repair of the assets of any of the Acquired Companies, or (B) there exists visual (or other sensory) or physical evidence that is manifest and would cause a reasonably prudent Person to suspect that there exists pollution or contamination in the soil or groundwaterFinal Purchase Price Adjustment Statement. (iv) The Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 with respect to any Losses or alleged Losses to the extent that such Losses or alleged Losses were taken into account in the determination of Closing Date Net Working Capital. (v) Except as required by applicable Law following a final determination within the meaning of Section 1313 of the Code, any indemnity payment under this Agreement shall be treated as an adjustment to the Final Contribution Consideration for Tax purposes.

Calculation of Losses. (a) The indemnified party shall use commercially reasonable efforts to seek full recovery under all insurance policies any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder; provided, that (i) In calculating amounts payable the indemnified party shall in no event be required to (A) maintain any Contributor Indemnitee or Regency Indemnitee (each such personinsurance policies, an “Indemnified Party”) including any insurance policies that provided coverage for a claim for indemnification hereunderNewCo, the Company or any of its Subsidiaries prior to the Closing Date, or (B) assert, or threaten to assert, any action, suit or proceeding against any Person or take any other action that would reasonably be expected to have an adverse impact in any material respect on the relationship between such indemnified party and such other Person or any of their respective Affiliates and (ii) the indemnified party shall be permitted to make claims under this Article X and the indemnifying party shall be required to indemnify the indemnified party under this Article X irrespective of whether the indemnified party has sought recovery under any insurance policy. The amount of any indemnified Losses for which indemnification is provided under this Article X shall (i) be determined without duplication net of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant or agreement and shall be computed net of (A) payments amounts actually recovered by the Indemnified Party indemnified party under any insurance policy policies or otherwise with respect to such Losses (net of any expenses incurred in connection with such recovery) and (ii) be net of any amounts recovered by the indemnified party from other Collateral Sources. If amounts are recovered from a Collateral Source after an indemnifying party makes a payment to or on behalf of an indemnified party pursuant to this Article X, the net proceeds thereof shall promptly be remitted to the indemnifying party that made such payment up to the amount of the indemnification payment made by the applicable indemnifying party (less any costs to recover from such Collateral Source). The parties acknowledge and agree that no right of subrogation to any rights of any party hereunder shall accrue or inure to the benefit of any Collateral Source and no claims of any indemnified party against any Collateral Source shall be subrogated to any indemnifying party. (b) Notwithstanding anything to the contrary elsewhere in this Agreement, no party shall, in any event, be liable to any other Person alleged to be responsible therefore and (B) for any prior punitive or subsequent actual recovery by the Indemnified Party from any Person with respect to exemplary damages of such Losses. (ii) The Indemnified Party must use commercially reasonable best efforts to mitigate in accordance with applicable Law any Loss for which the Indemnified Party seeks indemnification under this Agreementother Person, including cooperating with the Indemnifying Party to take all commercially reasonable measures to mitigate the consequences of the related breach. (iii) Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 except to the extent Losses payable to a third party as a result of a final, non-appealable determination by a court or arise from environmental invasive testing arbitral tribunal of soil, water or any other parts of the environment that can contain contaminants with competent jurisdiction in respect to any assets of the Acquired Companies (“Environmental Test”), unless (A) such Environmental Test is (w) required by Environmental Laws, (x) requested by a Governmental Authority with authority under Environmental Laws, (y) requested by a prospective or direct or indirect purchaser of, or third party providing financing for, Regency or any of its Affiliates, or any of the Acquired Companies or (z) necessary in connection with a bona fide expansion, reconfiguration, maintenance, dismantling, or repair of the assets of any of the Acquired Companies, or (B) there exists visual (or other sensory) or physical evidence that is manifest and would cause a reasonably prudent Person to suspect that there exists pollution or contamination in the soil or groundwaterThird Party Claim. (iv) The Contributor shall have no obligation to indemnify the Regency Parties or their Affiliates pursuant to Section 8.1 with respect to any Losses or alleged Losses to the extent that such Losses or alleged Losses were taken into account in the determination of Closing Date Net Working Capital. (v) Except as required by applicable Law following a final determination within the meaning of Section 1313 of the Code, any indemnity payment under this Agreement shall be treated as an adjustment to the Final Contribution Consideration for Tax purposes.