Common use of Calculation of Losses; Mitigation Clause in Contracts

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. An Indemnified Party shall not be entitled to double recovery for any Losses. In calculating amounts payable to an Indemnified Party hereunder, the (a) The amount of any indemnified Loss Losses otherwise eligible for indemnification under this Article VII 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 reduced by (excluding i) 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 proceeds actually received by the Indemnified Party (or any of its Affiliates from any Third Party Affiliates) with respect to such Losses, then (ii) any net Tax benefit that the Indemnified Party actually realizes as a refund equal result of the incurrence of such Losses, and (iii) any actual recovery from third Persons (less the fees and expenses incurred to obtain such proceeds). Each Indemnified Party shall exercise commercially reasonable efforts to obtain such proceeds, benefits and recoveries. If any such proceeds, benefits or recoveries are received by an Indemnified Party (or any of its Affiliates) with respect to any Losses after an Indemnifying Party has made a payment to the aggregate amount of recovery net of Indemnified Party with respect thereto, the Indemnified Party’s reasonable out-of-pocket expenses relating to Party (or such recovery Affiliate) shall be made promptly pay to the Indemnifying Party; provided that any increase in Party the Indemnified amount of such proceeds, benefits or recoveries (up to the amount of the Indemnifying Party’s payment). (b) Each party shall take all commercially reasonable steps to mitigate Losses upon or after becoming aware of any event which could reasonably be expected to give rise to Losses indemnifiable by the other party. Each Indemnified Party shall seek full recovery under all insurance premium resulting from policies covering any Losses to the making of same extent as it would if such claim shall also be taken into account in the calculation of such refundLosses were not subject to indemnification hereunder.

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 hereunderParty, the amount of any the indemnified Loss Losses 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 made and shall be computed net 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 Partyi) 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 payments actually received by the Indemnified Party under any insurance policy with respect to such Losses (which such Indemnified Party shall use commercially reasonable efforts to recover promptly and after giving effect to any expenditures to obtain such payments and any applicable deductible or its Affiliates retention), (ii) any prior or subsequent amounts actually recovered by the Indemnified Party from any Third Person with respect to such Losses (which such Indemnified Party shall use commercially reasonable efforts to recover promptly) and (iii) any Tax benefit actually realized by the Indemnified Party with respect to such Losses (which such Indemnified Party shall use commercially reasonable efforts to recover promptly). Each Indemnified Party shall act in good faith and shall use its commercially reasonable efforts to mitigate any of its Losses; provided, then a refund equal that in no event shall an Indemnified Party be required to incur costs in connection therewith in excess of the minimum amount it deems, in good faith, necessary to remedy the breach which gives rise 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 refundLosses.