Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.
(b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits.
(c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.
Calculation of Damages. (a) No Indemnitee shall be required to mitigate any Damages for which such Indemnitee seeks indemnification under this Agreement. The amount of any Damages payable under Section 12.02 shall be net of any amounts actually recovered by the Indemnitee under applicable insurance policies or other Contracts or from any other Person (net of any applicable deductible or increase in insurance premiums (including retro-premium adjustments); provided that the Indemnitee shall have no obligation to pursue or continue the pursuit of any such recovery. If the Indemnitee receives any amounts under applicable insurance policies or from any other Person responsible for any Damages subsequent to receipt of funds from the Indemnitors, then such Indemnitee shall promptly reimburse the Indemnitors for any funds delivered or expense incurred by the Indemnitors in connection with the delivery of such funds up to the amount received by the Indemnitee, net of any expenses (including any increase in insurance premiums (including retro-premium adjustments)) incurred by such Indemnitee (or its Affiliates) in collecting such amount.
(b) Neither the Members nor Parent shall be liable under Section 12.02 for any Damages (x) to the extent that there is a specific liability or reserve relating to such matter that is included (A) in the Group Balance Sheet (solely in respect of litigation-related, bad debt or customer deposit reserves made in accordance with GAAP and specifically attributed to the applicable litigation, account receivable or customer deposit that is the subject of such indemnification claim under Section 12.02(a)(i)) or (B) in the calculation of Closing Indebtedness or Closing Net Working Capital, in each case, as finally determined pursuant to Section 2.14, or (y) to the extent such Damages are otherwise taken into account in the calculations of the amount of the Final Adjusted Purchase Price.
(c) For the avoidance of doubt, subject to the determination of De Minimis Breaches set forth in Section 12.03, the amount of any Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, in connection with or otherwise in respect of any Damages incurred by Holdings or its Subsidiaries shall be deemed for all purposes herein, to the extent that any Parent Indemnitee is entitled to indemnification in accordance with this Article 12, to be the proportionate amount of such Damages sustained by any Acquired Entities or any of their Subsidiaries (i.e., based o...
Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.
Calculation of Damages. The amount of any Damages payable under Section 6.01 by the Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.
Calculation of Damages. Notwithstanding anything to the contrary herein:
(a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtedness.
(b) Notwithstanding anything to the contrary contained in this Agreement:
(i) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof;
(ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation.
(c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition su...
Calculation of Damages. If this Lease is terminated as provided in Paragraph 8.2(a)(i) above, Tenant, until the end of the Term, or what would have been such Term in the absence of any such event, shall be liable to Landlord, as damages for Tenant’s default, for the amount of the Base Rent and all Additional Rent and other charges which would be payable under this lease by Tenant if this Lease were still in effect, less the net proceeds of any reletting of the Premises actually collected by Landlord after deducting all Landlord’s expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage and management commissions, operating expenses, legal expenses, reasonable attorneys’ fees, alteration costs and expenses of preparation of the Premises for such reletting. Tenant shall pay such damages to Landlord monthly on the days on which the Base Rent and on the days on which Additional Rent would have been payable as if this Lease were still in effect, and Landlord shall be entitled to recover from Tenant such damages monthly as the same shall arise. If Base Rent and Additional Rent are accelerated and this Lease is terminated as provided in Paragraph 8.2(a)(ii) above, Tenant shall be liable to pay to Landlord, in one payment, as damages for Tenant’s default, an amount equal to the total amount of Base Rent and additional rent reserved in this Lease from the date of default to the date of expiration of the Term, minus such net proceeds of reletting of the Premises that Tenant proves could be collected by Landlord in mitigation, after deducting all Landlord’s expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage and management commissions, operating expenses, legal expenses, reasonable attorneys’ fees, alteration costs and expenses of preparation of the Premises for such reletting, all discounted at a fixed annual interest rate equal to the Federal Funds Rate as published in The Wall Street Journal on the date of Landlord’s election to accelerate the rents hereunder.
Calculation of Damages. Following repudiation by the Lessee if the Lessor terminates this Lease then, without prejudice to any other right or remedy, the Lessor may recover the difference between the aggregate of the Rent, the reasonable estimate of the outgoings and other money payable by the Lessee for the unexpired residue of the Term less any amount the Lessor obtains, or could in the Lessor’s opinion reasonably be expected to obtain, by observing clause 20.
Calculation of Damages. (a) The amount of any Damages payable under Section 12.02 by the Indemnifying Party shall be net of any amounts actually recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then 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 actually received by the Indemnified Party, net of any expenses incurred by the Indemnified Party in collecting such amount. The Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Calculation of Damages. Notwithstanding the foregoing,
(a) in the event of termination by REC Supplier for Buyer’s default, in addition to amounts owed for RECs Delivered prior to such termination, REC Supplier shall be entitled, as liquidated damages (and not as a penalty), and, provided that such amount is paid by Buyer within 30 calendar days of REC Supplier’s notice of such termination, as its exclusive remedy for Buyer’s default hereunder, to receive cover from Buyer equal to (i) the positive difference, if any, in price (i.e., REC Price less Sales Price) multiplied by the quantity of RECs not Delivered due to the termination of the Agreement for the remaining Term of this Agreement, and (ii) actual, reasonable and verifiable third party fees, including broker fees and legal fees and expenses incurred by REC Supplier in the enforcement and protection of its rights under this Agreement;
(b) in the event of termination by Buyer for REC Supplier’s default, Buyer shall be entitled, as liquidated damages (and not as a penalty), and, provided that such amount is paid by REC Supplier within 30 calendar days of Buyer’s notice of such termination, as its exclusive remedy for REC Supplier’s default hereunder, (i) to receive cover from REC Supplier equal to the sum of the Replacement Price multiplied by the quantity of RECs not Delivered due to the termination of the Agreement for the remaining Term of this Agreement and for which no renewable energy compliance payments were required; (ii) actual, reasonable and verifiable third party fees, including broker fees and legal fees and expenses incurred by Buyer in the enforcement and protection of its rights under this Agreement; and (iii) any renewable energy compliance payments paid by Buyer as a result of REC Supplier’s failure to Deliver RECs as required under this Agreement.
Calculation of Damages. (1) The amount of any Damages payable under Section 4.A and 4.B by the Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under applicable insurance policies and the Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance policies.
(2) If the Indemnified Party receives an amount under insurance coverage or from a third party with respect to Damages at any time subsequent to any indemnification provided by the Indemnifying Party pursuant to Section 4.A and 4.B, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount received by such Indemnified Party, but net of any expenses incurred by such Indemnified Party in collecting such amount.
