Common use of Calculation and Mitigation of Damages Clause in Contracts

Calculation and Mitigation of Damages. (a) The amount of any Damages for which indemnification is provided under this Section 13 shall be net of any amounts actually recovered by such Indemnified Party under insurance policies or other collateral sources with respect to such Damages. In the event any amounts recovered or recoverable under insurance policies or other collateral sources are not received before any claim for indemnification is paid pursuant to this Section 13, then, in the event that the Indemnified Parties receive any such recovery, the amount of such recovery shall be applied first, to reimburse the Indemnified Parties for their out-of-pocket expenses (including reasonable attorney's fees and expenses) expended in pursuing such recovery, second, to refund any payments made by the Indemnifying Parties which would not have been so paid had such recovery been obtained prior to such payment, and third, any excess to the Indemnified Parties. (b) Notwithstanding any provision of this Agreement to the contrary, "Damages" shall not include any consequential, indirect damages or punitive damages, except to the extent paid by the Indemnified Party to an unaffiliated third party. Notwithstanding the foregoing, the Buyer Indemnified Parties shall be entitled to recover for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the Closing Date solely to the extent that the applicable Damages are reasonably foreseeable in connection with the breach or violation that is the subject of the indemnification claim. Notwithstanding any provision of this Agreement to the contrary, "Damages" for purposes of Section 13.2(g) shall not include recovery for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the Closing.

Calculation and Mitigation of Damages. (a) The amount of any Damages for which indemnification is provided under this Section 13 Article IX shall be net of any amounts actually recovered or recoverable by such Indemnified Party under insurance policies or other collateral sources with respect to such Damages. In the event any amounts recovered or recoverable under insurance policies or other collateral sources are not received before any claim for indemnification is actually paid pursuant to this Section 13Article IX, thenthen the Buyer Indemnified Parties shall pursue such insurance policies or collateral sources, and in the event that the a Buyer Indemnified Parties receive Party receives any such recovery, the amount of such recovery shall be applied first, to reimburse the Indemnified Parties for their out-of-pocket expenses (including reasonable attorney's fees and expenses) expended in pursuing such recovery, second, to refund any payments made by the Indemnifying Parties which would not have been so paid had such recovery been obtained prior to such payment, and thirdsecond, any excess to the Buyer Indemnified Parties. If a Buyer Indemnified Party fails to pursue recoveries under any “incurrence” based insurance policies or other collateral sources, then Seller shall have the right of subrogation to pursue such insurance policies or other collateral sources and may take any reasonable actions necessary to pursue such rights of subrogation in its name or the name of the party from whom subrogation is obtained. Buyer shall use commercially reasonable efforts to cooperate, and cause its Affiliates and Representatives to use commercially reasonable efforts to cooperate, with Seller to pursue any such subrogation claim. (b) Notwithstanding any provision of this Agreement to the contrary, "“Damages" ” shall not include any consequential, incidental or indirect damages damages, special or punitive damages, except including loss of revenue, profits or income, diminution in value or loss of business reputation or opportunity. (c) Buyer and Seller agree to treat any indemnification payments received pursuant to this Agreement for all Tax purposes as an adjustment to the extent paid by the Indemnified Party to an unaffiliated third party. Notwithstanding the foregoing, the Buyer Indemnified Parties shall be entitled to recover for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the Closing Date solely to the extent that the applicable Damages are reasonably foreseeable in connection with the breach or violation that is the subject of the indemnification claim. Notwithstanding any provision of this Agreement to the contrary, "Damages" for purposes of Section 13.2(g) shall not include recovery for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the ClosingPurchase Price.

Calculation and Mitigation of Damages. (a) The amount of any Damages for which indemnification is provided under this Section 13 14 shall be net of any amounts actually recovered by such Indemnified Party under insurance policies or other collateral sources with respect to such Damages. In the event any amounts recovered or recoverable under insurance policies or other collateral sources are not received before any claim for indemnification is paid pursuant to this Section 1314, thenthen the Buyer Indemnified Parties shall use reasonable commercial efforts to pursue such insurance policies or collateral sources, and in the event that the Buyer Indemnified Parties receive any such recovery, the amount of such recovery shall be applied first, to reimburse the Buyer Indemnified Parties for their out-of-pocket expenses (including reasonable attorney's fees and expenses) expended in pursuing such recovery, second, to refund any payments made by the Indemnifying Parties Sellers which would not have been so paid had such recovery been obtained prior to such payment, and third, any excess to the Buyer Indemnified Parties. (b) Notwithstanding any provision of this Agreement to the contrary, "Damages" shall not include any consequential, incidental or indirect damages damages, special or punitive damages, including loss of revenue, profits or income, except to the extent paid to a third party. In valuing a "Damage," no adjustment shall be made as a result of any multiplier of the Company's or any other Person's earnings before interest, Tax, depreciation or amortization (or any similar valuation metric), or any other premium over fair market, book or historical value which may have been paid by Buyer for the securities whether or not such multiple, increase factor or other premium had been used by Buyer at the time of, or in connection with, calculating or preparing its bid, its proposed purchase price or its final purchase price for the Company and its Subsidiaries. For purposes of clarification, the amount of actual Damages to which an Indemnified Party may be entitled to recover pursuant to this Section 14 in respect of a breach by an Indemnifying Party, as determined by a court of competent jurisdiction, of a representation or warranty that is qualified by materiality, shall not be reduced solely due to the fact that such representation or warranty was so qualified; provided, however, that neither the terms of this sentence nor any other provision hereunder shall have the effect of changing, amending or modifying any representation or warranty contained in this Agreement (or any other term or provision contained in this Agreement) for any purpose hereunder, including but not limited to whether any breach of any such representation or warranty qualified by materiality hereunder is subject to the limitations or thresholds set forth in this Section 14; and provided further, however, that the parties hereto acknowledge and agree that any representation or warranty hereunder that is qualified by materiality shall remain so qualified by materiality when determining whether any such representation or warranty was breached. (c) Each party shall use reasonable commercial efforts to mitigate its Damages (including, 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 Damages) upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto. (d) The amount of Damages with respect to which an Indemnified Party is to be indemnified pursuant to this Section 14 shall initially be determined without regard to any income Tax benefit, and the indemnification payment shall be made on such basis. To the extent, however, that the Indemnified Party recognizes a net income Tax benefit with respect to any Damages for which payment is made hereunder, after taking into account the income Tax effect, if any, of such indemnification payment (such net income Tax benefit is referred to hereafter as a "Net Tax Benefit"), such Indemnified Party shall pay to the Indemnifying Party the amount of such Net Tax Benefit (but not, in any event, in an amount in excess of the indemnification payment actually received from such Indemnifying Party with respect to such Damages) at such time or times as and to the extent that such Indemnified Party or any Affiliate of such Indemnified Party actually realizes such Tax Benefit through a refund or a reduction in income Tax otherwise payable, calculated by computing the amount of income Taxes before and after taking into account any Tax items attributable to such Damage and the indemnification payment with respect to such Damage; provided, however, that the Indemnified Party may, if it reasonably determines based on an opinion of counsel (other than internal counsel) that there is a substantial risk of a disallowance of a Net Tax Benefit claimed, elect, on notice to the Sellers' Representative or Buyer, as the case may be, to withhold payment to the Indemnifying Party of such Net Tax Benefit until such time as the relevant taxable year has been closed or the uncertainty regarding such Net Tax Benefit otherwise resolved, during which time such Net Tax Benefit shall bear interest at the rate applicable to federal income tax overpayments, except that no such deferral of payment shall be made in the event that the Indemnifying Party shall deliver to the Indemnifying Party a "will" opinion of counsel reasonably satisfactory to the Indemnified Party to an unaffiliated third party. Notwithstanding the foregoing, the Buyer Indemnified Parties shall effect that such Net Tax Benefit will be entitled to recover for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the Closing Date solely to the extent that the applicable Damages are reasonably foreseeable in connection with the breach or violation that is the subject of the indemnification claim. Notwithstanding any provision of this Agreement to the contrary, "Damages" for purposes of Section 13.2(g) shall not include recovery for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the Closingsustained.

Calculation and Mitigation of Damages. (a) The amount of any Damages for which indemnification is provided under this Section 13 Article IX shall be net of any amounts actually recovered or recoverable by such Indemnified Party under insurance policies or other collateral sources with respect to such Damages. In the event any amounts recovered or recoverable under insurance policies or other collateral sources are not received before any claim for indemnification is actually paid pursuant to this Section 13Article IX, thenthen the Buyer Indemnified Parties shall pursue such insurance policies or collateral sources, and in the event that the a Buyer Indemnified Parties receive Party receives any such recovery, the amount of such recovery shall be applied first, to reimburse the Indemnified Parties for their out-of-pocket expenses (including reasonable attorney's fees and expenses) expended in pursuing such recovery, second, to refund any payments made by the Indemnifying Parties which would not have been so paid had such recovery been obtained prior to such payment, and thirdsecond, any excess to the Buyer Indemnified Parties. If a Buyer Indemnified Party fails to pursue recoveries under any "incurrence" based insurance policies or other collateral sources, then Seller shall have the right of subrogation to pursue such insurance policies or other collateral sources and may take any reasonable actions necessary to pursue such rights of subrogation in its name or the name of the party from whom subrogation is obtained. Buyer shall use commercially reasonable efforts to cooperate, and cause its Affiliates and Representatives to use commercially reasonable efforts to cooperate, with Seller to pursue any such subrogation claim. (b) Notwithstanding any provision of this Agreement to the contrary, "Damages" shall not include any consequential, incidental or indirect damages damages, special or punitive damages, except including loss of revenue, profits or income, diminution in value or loss of business reputation or opportunity. (c) Buyer and Seller agree to treat any indemnification payments received pursuant to this Agreement for all Tax purposes as an adjustment to the extent paid by the Indemnified Party to an unaffiliated third party. Notwithstanding the foregoing, the Buyer Indemnified Parties shall be entitled to recover for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the Closing Date solely to the extent that the applicable Damages are reasonably foreseeable in connection with the breach or violation that is the subject of the indemnification claim. Notwithstanding any provision of this Agreement to the contrary, "Damages" for purposes of Section 13.2(g) shall not include recovery for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the ClosingPurchase Price.

Calculation and Mitigation of Damages. (a) The amount of any Damages for which indemnification is provided under this Section 13 12 shall be net of any amounts actually recovered by such Indemnified Party under insurance policies or other collateral sources with respect to such Damages. In the event any amounts recovered or recoverable under insurance policies or other collateral sources are not received before any claim for indemnification is paid pursuant to this Section 1312, thenthen the Buyer Indemnified Parties shall use reasonable commercial efforts to pursue such insurance policies or collateral sources, and in the event that the Buyer Indemnified Parties receive any such recovery, the amount of such recovery shall be applied first, to reimburse the Buyer Indemnified Parties for their out-of-pocket expenses (including reasonable attorney's ’s fees and expenses) expended in pursuing such recovery, second, to refund any payments made by the Indemnifying Parties Sellers which would not have been so paid had such recovery been obtained prior to such payment, and third, any excess to the Buyer Indemnified Parties. (b) Notwithstanding any provision of this Agreement to the contrary, "“Damages" ” shall not include any consequential, incidental or indirect damages damages, special or punitive damages, including loss of revenue, profits or income, except to the extent paid to a third party. In valuing a “Damage,” no adjustment shall be made as a result of any multiplier of the Company’s or any other Person’s earnings before interest, Tax, depreciation or amortization (or any similar valuation metric), or any other premium over fair market, book or historical value which may have been paid by Buyer for the securities whether or not such multiple, increase factor or other premium had been used by Buyer at the time of, or in connection with, calculating or preparing its bid, its proposed purchase price or its final purchase price for the Company. For purposes of clarification, the amount of actual Damages to which an Indemnified Party may be entitled to recover pursuant to this Section 12 in respect of a breach by an Indemnifying Party, as determined by a court of competent jurisdiction, of a representation or warranty that is qualified by materiality, shall not be reduced solely due to the fact that such representation or warranty was so qualified; provided, however, that neither the terms of this sentence nor any other provision hereunder shall have the effect of changing, amending or modifying any representation or warranty contained in this Agreement (or any other term or provision contained in this Agreement) for any purpose hereunder, including but not limited to whether any breach of any such representation or warranty qualified by materiality hereunder is subject to the limitations or thresholds set forth in this Section 12; and provided, further, however, that the parties hereto acknowledge and agree that any representation or warranty hereunder that is qualified by materiality shall remain so qualified by materiality when determining whether any such representation or warranty was breached. (c) Each party shall use reasonable commercial efforts to mitigate its Damages (including, 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 Damages) upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto. (d) The amount of Damages with respect to which an Indemnified Party is to be indemnified pursuant to this Section 12 shall initially be determined without regard to any income Tax benefit, and the indemnification payment shall be made on such basis. To the extent, however, that the Indemnified Party recognizes a net income Tax benefit with respect to any Damages for which payment is made hereunder, after taking into account the income Tax effect, if any, of such indemnification payment (such net income Tax benefit is referred to hereafter as a “Net Tax Benefit”), such Indemnified Party shall pay to the Indemnifying Party the amount of such Net Tax Benefit (but not, in any event, in an amount in excess of the indemnification payment actually received from such Indemnifying Party with respect to such Damages) at such time or times as and to the extent that such Indemnified Party or any Affiliate of such Indemnified Party actually realizes such Tax benefit through a refund or a reduction in income Tax otherwise payable, calculated by computing the amount of income Taxes before and after taking into account any Tax items attributable to such Damage and the indemnification payment with respect to such Damage; provided, however, that the Indemnified Party may, if it reasonably determines based on an opinion of counsel (other than internal counsel) that there is a substantial risk of a disallowance of a Net Tax Benefit claimed, elect, on notice to the Sellers’ Representative or Buyer, as the case may be, to withhold payment to the Indemnifying Party of such Net Tax Benefit until such time as the relevant taxable year has been closed or the uncertainty regarding such Net Tax Benefit otherwise resolved, during which time such Net Tax Benefit shall bear interest at the rate applicable to federal income tax overpayments, except that no such deferral of payment shall be made in the event that the Indemnifying Party shall deliver to the Indemnifying Party a “will” opinion of counsel reasonably satisfactory to the Indemnified Party to an unaffiliated third party. Notwithstanding the foregoing, the Buyer Indemnified Parties shall effect that such Net Tax Benefit will be entitled to recover for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the Closing Date solely to the extent that the applicable Damages are reasonably foreseeable in connection with the breach or violation that is the subject of the indemnification claim. Notwithstanding any provision of this Agreement to the contrary, "Damages" for purposes of Section 13.2(g) shall not include recovery for profits lost or otherwise not realized in respect of the businesses of the Company and the Retained Subsidiaries following the Closingsustained.