Calculation of Losses; Mitigation. (a) The amount of any Loss (or Tax) for which indemnification is provided under this Article VI shall be net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (or Tax) (net of the reasonable, out-of-pocket costs of investigation and collection) and shall be reduced to take account of any Tax benefit actually realized as a result of the incurrence or payment of the applicable Loss (or Tax) as a reduction in cash Taxes paid by the indemnified party (or, in the case of Purchaser, any Group Company) in the taxable year in which the applicable Loss (or Tax) is incurred and increased to take account of any Tax cost incurred by the indemnified party as a result of the receipt of any indemnification payment hereunder, determined on a with and without basis. The amount of the Loss (or Tax) arising out of any item included as a liability in calculating Closing Working Capital, if any, shall be calculated net of the amount so included. To the extent that any amount is recovered by any indemnified party under an insurance policy or any other source of indemnification is realized after the date that an indemnity payment is made hereunder, then such indemnified party shall pay to the indemnifying party such amounts (net of associated reasonable out-of-pocket costs) no later than five days after such proceeds are received (but not to exceed the amount of the indemnity payment).
(b) Notwithstanding anything to the contrary herein or provided under applicable Law, Losses indemnifiable pursuant to this Article VI shall not include Losses that are in the nature of punitive, incidental, consequential, special, treble or indirect damages or damages based on any multiple, including business interruption, loss of future revenue, profits or income, or loss of business reputation or opportunity, in each case of any kind or nature, regardless of the form of action through which any of the foregoing are sought, in each case except to the extent (x) in the case of consequential damages, including business interruption, loss of future revenue, profits or income, or loss of business reputation or opportunity, any such Losses are reasonably foreseeable to the indemnifying party or (y) any such Losses are awarded and paid by an indemnified party with respect to a Third Party Claim.
(c) Purchaser and Seller shall cooperate with each other with respect to resolving any claim or liability with respect to which one part...
Calculation of Losses; Mitigation. An Indemnified Party shall not be entitled to double recovery for any Losses. In calculating amounts payable to an Indemnified Party hereunder, the amount of any indemnified Loss shall not be duplicative of any other Loss for which an indemnification claim has been made. If an Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 9.2 or Section 9.3 and the Indemnified Party could have recovered all or a part of such Losses from a Third Party (excluding any insurance company of such 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 the Third Party the amount of such payment; provided that to the extent any insurance recovery is actually received by the Indemnified Party or its Affiliates from any Third Party with respect to such Losses, then a refund equal to the aggregate amount of recovery net of the Indemnified Party’s reasonable out-of-pocket expenses relating to such recovery shall be made promptly to the Indemnifying Party; provided that any increase in the Indemnified Party’s insurance premium resulting from the making of such claim shall also be taken into account in the calculation of such refund.
Calculation of Losses; Mitigation. (a) The amount of any Loss (including a Tax) for which indemnification is provided under this Article VIII shall be (i) net of any amounts recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (including a Tax) (after taking into account costs of collection and any increase in premium) and (ii) reduced or offset by any Tax deductions, credits or similar attributes arising as a result of such Loss actually realized by the Group Companies or its Affiliates in the year in which the loss occurred (calculated on a “with or without” basis). The amount of the Loss (including a Tax) arising out of any item included as a liability in calculating Closing Working Capital or Closing Indebtedness, if any, shall be calculated net of the amount so included.
(b) Notwithstanding anything to the contrary herein or provided under applicable Law, Losses shall not include Losses that are punitive or treble damages regardless of the form of action through which any of the foregoing are sought, in each case except to the extent any such Losses are awarded and paid by an indemnified party with respect to a Third Party Claim.
(c) Purchaser and Seller shall, and shall cause their respective Affiliates to, cooperate with each other with respect to resolving any claim or liability with respect to which one party is obligated to indemnify the other party or a Seller Indemnitee or Purchaser Indemnitee hereunder, including by using commercially reasonable efforts to (i) resolve any such claim or liability and (ii) mitigate any Loss for which indemnification is sought under this Agreement; provided, however, that the reasonable and documented out-of-pocket costs of such mitigation shall constitute Losses for purposes of this Agreement.
Calculation of Losses; Mitigation. For purposes of determining the amount of any Losses subject to indemnification under this Article IX, the amount of such Losses will be determined net of (a) all related reserves properly accrued and directly related to the specific matter subject of indemnification on the Balance Sheet or reflected in the Final Working Capital Amount and (b) the difference of (i) any amounts recovered by the Indemnified Party under insurance policies with respect to such Losses minus (ii) the total of the cost of such recovery and the reasonably expected increased cost of premiums for the insurance policy under which the Indemnified Party recovered.
Calculation of Losses; Mitigation. (a) The amount of any Loss for which indemnification is provided under this Article XI shall be net of (x) any amounts actually received by the Indemnified Party under insurance policies with respect to such Loss and (y) the amount of any Tax benefit actually realized by the Indemnified Party as a result of incurring the Loss at issue in the taxable year in which such Loss is incurred or paid.
(b) No Indemnified Party shall be entitled to indemnification pursuant to this Article XI with respect to any Loss to the extent that such Loss was reflected in the calculation of the Final Purchase Price as finally determined pursuant to Section 1.04.
(c) No Indemnified Party shall be entitled to recover for the same Loss more than once under this Article XI or otherwise under this Agreement. Notwithstanding anything to the contrary herein or provided under applicable Law, Losses shall not include Losses that are in the nature of (i) diminution in value, exemplary or punitive damages, regardless of the form of action through which they are sought, or (ii) damages calculated on multiplies of earnings or other similar metric approaches, in each case, except to the extent any such Losses are awarded and paid by an Indemnified Party with respect to a Third Party Claim.
(d) Purchaser and Seller shall, and shall cause their respective Affiliates to, cooperate with each other with respect to resolving any claim or liability with respect to which one Party is obligated to indemnify the other Party or a Seller Indemnitee or Purchaser Indemnitee hereunder, including by using reasonable efforts to cooperate in good faith to (i) resolve any such claim or liability and (ii) mitigate to the extent required by Law any Loss for which indemnification is sought under this Agreement; provided, however, that the reasonable and documented out-of- pocket costs of such mitigation shall constitute Losses for purposes of this Agreement.
Calculation of Losses; Mitigation. For the purposes of calculating the amount of Losses pursuant to Section 9.2(a)(i), the representations and warranties in this Agreement (and the representations, warranties and certifications in any certificate or document delivered pursuant to this Agreement) shall be read without any materiality (including the word “material”), Material Adverse Effect or similar qualifiers.
Calculation of Losses; Mitigation. The amount of any Loss for which indemnification is provided under this Article XII shall be net of any amounts actually recovered by any Indemnitee from third parties under insurance policies (other than the R&W Insurance Policy, and net of any related increase in premium or costs of collection) or otherwise with respect to such Loss. If the Indemnitee subsequently recovers any such amounts, the Indemnitee shall promptly pay such amounts over to the Indemnitor. In the event of any breach giving rise to an indemnification obligation under this Article XII or the right to make a claim against the then-available portion of the Indemnity Escrow Account, the Indemnitee shall take, and shall cause its respective Affiliates to take, all commercially reasonable measures to mitigate the consequences of the related breach (including taking commercially reasonable steps to prevent any contingent Loss from becoming an actual Loss).
Calculation of Losses; Mitigation. (a) Notwithstanding anything to the contrary set forth herein:
(i) with respect to the first $5,600,000 of Losses under Section 10.02(a) Seller shall be required to provide indemnification for fifty percent (50%) of such Losses up to a maximum amount equal to $2,800,000 (the “Cap”); provided, however, that no claim or series of related claims for indemnification for any such Losses may be asserted unless and until the aggregate amount of Losses that would be payable pursuant to such claim or series of related claims (together with all related claims) exceeds an amount equal to $100,000 (the “Basket”) at which point Seller shall be liable for the full amount of such Losses from the first dollar without regard to the Basket; provided, that (x) none of the foregoing limitations shall not apply with respect to Losses arising out of or relating to breaches of the Seller Fundamental Representations, the Tax Representations or the Fundamental IP Representations or other indemnifiable Losses under Section 10.02 (other than under Section 10.02(a)) or in the case of Fraud and Seller shall be required to provide indemnification for 100% of any such Losses and no such Losses shall count towards the satisfaction of the Cap nor shall such Losses be subject to the Basket and (y) the Cap shall not apply with respect to Losses arising out of or relating to breaches of any other IP Representations;
(ii) other than in the case of Fraud, in no event shall Seller, on the one hand, or the Purchasers, on the other hand, be required to indemnify any Person(s) pursuant to Section 10.02 or Section 10.03, respectively, in an aggregate amount in excess of the Purchase Price; provided, further, that Seller shall have no obligation to provide indemnification for any Losses arising out of breaches of the IP Representations or Tax Representations in an aggregate amount in excess of the Base Purchase Price.
(b) The amount of any Loss for which indemnification is provided under this Article X shall be net of (x) any amounts actually received by the Indemnified Party under insurance policies (including the R&W Insurance Policy) with respect to such Loss (“Collateral Sources”) and (y) the reduction in cash Taxes realized by the Indemnified Party as a result of incurring the Loss at issue in the taxable year in which such Loss is incurred or in the subsequent taxable year; provided that, the amount of any indemnifiable Losses shall be increased for any reasonable and documented out-of-pocket ...
Calculation of Losses; Mitigation. (a) The amount of any Loss (including a Tax) for which indemnification is provided under this Article VIII shall be net of any amounts recovered or recoverable by the indemnified party under insurance policies with respect to such Loss. The amount of the Loss (including a Tax) arising out of any item included as a liability in calculating Closing Working Capital, if any, shall be calculated net of the amount so included.
(b) Notwithstanding anything to the contrary herein or provided under applicable Law, Losses exclude (x) incidental, consequential and lost profits damages (except, in each case, to the extent any such Losses were reasonably foreseeable) and (y) punitive, special or treble damages (except, in each case, to the extent any such Losses are awarded and paid by an indemnified party with respect to a Third Party Claim).
Calculation of Losses; Mitigation. Notwithstanding anything to the contrary in this Agreement, the amount of any Losses suffered or incurred by any Indemnified Person shall be calculated after giving effect to any insurance proceeds actually received by the Indemnified Person with respect to such Losses from third party insurers, net of (a) all out-of-pocket costs and expenses relating to collection of such amounts from such insurers, (b) any deductible associated therewith, and (c) any increase in premiums resulting therefrom. Each Indemnified Person shall use its commercially reasonable efforts to recover under insurance policies or similar agreements for any Losses. In addition, notwithstanding anything to the contrary in this Agreement, (i) in no event shall any Indemnifying Person be liable to any Indemnified Person for any punitive, incidental, special (other than consequential) or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach of alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple, except in the case of such Losses awarded to a third party arising out of Third Party Claims, and (ii) each Indemnified Person shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto.
