Common use of Calculation of Losses; Mitigation Clause in Contracts

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 party is obligated to indemnify the other party hereunder, including by using commercially reasonable efforts to mitigate any Loss for which indemnification is sought under this Agreement; provided, however, that the reasonable out-of-pocket costs of such mitigation shall constitute Losses for purposes of this Agreement. In the event that Purchaser or Seller shall fail to use such commercially reasonable efforts to mitigate or resolve any claim or liability, then notwithstanding anything else to the contrary contained herein, the other party shall not be required to indemnify any Person for any loss, liability, claim, damage or expense that would reasonably be expected to have been avoided if Purchaser or Seller, as the case may be, had made such efforts.

Calculation of Losses; Mitigation. (a) The amount of any Loss (or including with respect to applicable Tax) for which indemnification is provided under this Article VI VIII shall be net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (or including a Tax) (net of the reasonable, out-of-pocket after taking into account costs of investigation and collection, incremental Taxes actually incurred on receipt of insurance proceeds) 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 increase 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)premium. (b) Notwithstanding anything to the contrary herein or provided under applicable Law, Losses indemnifiable pursuant to this Article VI shall not include (i) 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 soughtpunitive damages, 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, or (ii) any Taxes imposed on any Seller Indemnitee or Purchaser Indemnitee (or any direct or indirect owner thereof), as applicable, in respect of any payment to such Seller Indemnitee or Purchaser Indemnitee, as applicable, under this Article VIII. (c) Purchaser and Seller shall, and shall cause their respective Affiliates to, reasonably cooperate with each other with respect to resolving any claim or liability with respect to which one party hereto is obligated to indemnify the other party hereto 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. In Agreement and that the event that foregoing clause (ii) shall not require Purchaser, Seller or their Affiliates to take any action with respect to Taxes or Tax Returns to the extent such action requires (x) Purchaser, Seller or their Affiliates to use Tax attributes first generated in a Post-Closing Tax Period, (y) Purchaser or any of its Affiliates to take any Purchaser Tax Act that would give rise to an indemnification obligation under Section 8.03(b), or (z) Purchaser, Seller shall fail or any of their Affiliates to, with respect to a Post-Closing Tax Period, take or refrain from taking any Tax Return position, use such commercially reasonable efforts to mitigate or resolve refrain from using any claim method of accounting, or liabilitymake or refrain from making any filing or election, then notwithstanding anything else in each case except to the contrary contained hereinextent otherwise expressly required by this Agreement (excluding, the other party shall not be required to indemnify any Person for any lossthis purpose, liability, claim, damage or expense that would reasonably be expected to have been avoided if Purchaser or Seller, as the case may be, had made such effortsthis Section 8.04(c)).

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 or recoverable 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 Taxa) 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 net Tax cost incurred by the indemnified party as a result arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (b) reduced to take account of any net Tax benefit realized by the indemnified party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax benefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any indemnification indemnity payment hereunder, determined on a with and without basishereunder or the incurrence or payment of any indemnified Loss. 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 party is obligated to indemnify the other party hereunder, including by using commercially reasonable efforts (at its own expense) to mitigate or resolve any Loss for which indemnification is sought under this Agreement; provided, however, that the reasonable out-of-pocket costs of such mitigation shall constitute Losses for purposes of this Agreementclaim or liability. In the event that Purchaser or Seller shall fail to use such commercially reasonable efforts (at its own expense) to mitigate or resolve any claim or liability, then notwithstanding anything else to the contrary contained herein, the other party shall not be required to indemnify any Person for any loss, liability, claim, damage or expense Loss that would reasonably be expected to have been avoided if Purchaser or Seller, as the case may be, had made such efforts. (c) Notwithstanding anything to the contrary in this Agreement, Seller shall not be liable for any Loss under Section 6.03 to the extent such Loss is reduced or eliminated by the surrender for nil payment of Group Relief to the Company or the Company Subsidiary by Seller or any company other than a member of Purchaser's Tax group or a company otherwise connected with Purchaser (including by way of electing that any gain on the disposal or notional disposal of an asset be treated as accruing not to the Company or the Company Subsidiary but to a member of Seller's group). Seller may make or procure the making of such surrender or election and Purchaser shall and shall cause the Company or the Company Subsidiary to cooperate with Seller in relation to such surrender or election and make all necessary returns, claims, consents and notifications required to be made in respect of such surrender or election.

Calculation of Losses; Mitigation. (a) The amount of any Loss (or including a Tax) for which indemnification is provided under this Article VI VIII shall be (i) net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (or including a Tax) (net of the reasonable, out-of-pocket after taking into account costs of investigation collection and collectionany increase in premium) and shall be (ii) reduced to take account of or offset by any Tax benefit actually realized deductions, credits or similar attributes arising as a result of the incurrence such Loss actually realized by Purchaser or payment of the applicable Loss (or Tax) as a reduction in cash Taxes paid by the indemnified party (or, its Affiliates in the case of Purchaser, any Group Company) in the taxable year in which the applicable Loss loss occurred (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 calculated on a “with and without or without” basis). The amount of the Loss (or including a Tax) arising out of any item included as a liability in calculating Closing Working CapitalIndebtedness, 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 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. In the event that Purchaser or Seller shall fail to use such commercially reasonable efforts to resolve or mitigate or resolve any claim or liability, then notwithstanding anything else to the contrary contained herein, the other party shall not be required to indemnify any Person for to the extent of any loss, liability, claim, damage or expense that would reasonably be expected to have been avoided if Purchaser or Seller, as the case may be, had made such efforts.

Calculation of Losses; Mitigation. (a) The For purposes of determining the amount of any Loss (or Tax) for which Losses subject to indemnification is provided under this Article VI shall ARTICLE X, 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 Company Balance Sheet or reflected in the Final Amounts and (b) the difference of (i) any amounts actually recovered by the indemnified party Buyer Indemnified Party under insurance policies or otherwise under any third-party contracts listed on Section 10.5 of the Seller Disclosure Schedule (“Collateral Sources”) with respect to such Loss Losses minus (or Taxii) (net the total of the reasonablecost of such recovery and, out-of-pocket costs if applicable, the reasonably expected increased cost of investigation and collection) and shall be reduced to take account of any Tax benefit actually realized as a result of premiums for 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 insurance policy under 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)Buyer Indemnified Party recovered. (b) Notwithstanding anything to the contrary herein or provided under applicable Lawset forth herein, 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 parties hereto shall use commercially reasonable efforts 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 mitigate all Losses are reasonably foreseeable to the indemnifying party or (y) any such Losses are awarded and paid by an indemnified party with respect relating to a Third Party ClaimClaim under the indemnification provisions set forth in Section 10.1. (c) Purchaser and Seller shall cooperate with each other If any indemnitor makes an indemnification payment with respect to resolving any claim Loss in accordance with this ARTICLE X, then such indemnitor shall be subrogated, to the extent of such payment, to all related rights and remedies of the indemnitees under any Collateral Source against or liability with respect to which one party such Loss, except to the extent such subrogation is obligated to indemnify not permitted under the other party hereunderterms of such Collateral Source or under applicable Law. Promptly following such indemnitor’s request, including by using the applicable indemnitee shall use its commercially reasonable efforts to mitigate take all reasonably necessary, proper or desirable actions (including the execution and delivery of any Loss for which indemnification is sought under this Agreementdocument reasonably requested) to accomplish the foregoing; provided, howeverthat, with respect to any insurance policy that constitutes a Collateral Source, the reasonable out-of-pocket costs of such mitigation indemnitor shall constitute Losses be liable for purposes of this Agreement. In the event that Purchaser or Seller shall fail to use such commercially reasonable efforts to mitigate or resolve any claim or liability, then notwithstanding anything else increase to the contrary contained herein, the other party shall not be required to indemnify any Person for any loss, liability, claim, damage cost or expense that would reasonably be expected to have been avoided if Purchaser of any such insurance policies, including the deductible or Seller, as the case may be, had made such effortsany premium with respect thereto.

Calculation of Losses; Mitigation. (a) The amount of any Loss (or including a Tax) for which indemnification is provided under this Article VI VIII shall be (i) net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (or including a Tax) (net of the reasonable, out-of-pocket after taking into account costs of investigation collection and collectionany increase in premium) and shall be (ii) reduced to take account of or offset by any Tax benefit actually realized as a result of the incurrence or payment such Loss by any of the applicable Loss (Group Companies incorporated or Tax) as a reduction in cash Taxes paid by organized outside of the indemnified party (or, United States in the case of Purchaser, any Group Company) in the taxable year in which the applicable Loss occurred (calculated on a “with or Taxwithout” basis) is incurred (after taking into account any Taxes payable by any such Group Company and increased any loss of Tax benefits by such Group Company attributable to take account of any a reduction in Tax cost incurred by the indemnified party basis in assets, in each case, as a result of the receipt of any indemnification indemnity payment hereunder, determined on a with and without basisrespect to such Loss). The amount of the Loss (or including a Tax) arising out of any item included as a liability in calculating Closing Working CapitalCapital or Closing Indebtedness, 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, except in the case of Actual Fraud, 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 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. In the event that Purchaser or Seller shall fail to use such commercially reasonable efforts to resolve or mitigate or resolve any claim or liability, then notwithstanding anything else to the contrary contained herein, the other party shall not be required to indemnify any Person for any loss, liability, claim, damage or expense that would reasonably be expected to have been avoided if Purchaser or Seller, as the case may be, had made such efforts.

Calculation of Losses; Mitigation. (a) The amount of any Loss (or including a Tax) for which indemnification is provided under this Article VI VIII shall be (i) net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (or including a Tax) (net of the reasonable, out-of-pocket after taking into account costs of investigation collection and collectionany increase in premium) and shall be (ii) reduced to take account of any Tax benefit actually realized in the year of the incurrence or payment of the applicable Loss, as determined on a with and without basis, by the indemnified party or any of its Affiliates as a result of the incurrence or payment of the applicable Loss (or including a 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 including a Tax) arising out of any item included as a liability in calculating Closing Working CapitalCapital or Closing Indebtedness, 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 punitive 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, 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) after receiving written notice from the other party regarding such claim or liability, 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. In the event that Purchaser or Seller shall fail to use such commercially reasonable efforts to mitigate or resolve any claim or liability, then notwithstanding anything else to the contrary contained herein, the other party shall not be required to indemnify any Person for any loss, liability, claim, damage or expense that would reasonably be expected to have been avoided if Purchaser or Seller, as the case may be, had made such efforts.