Common use of Damages Net of Insurance, Etc Clause in Contracts

Damages Net of Insurance, Etc. The amount of any Damages for which indemnification is provided under this Article VII or Article VIII shall be net of (a) any amounts actually recovered by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any third party (less any costs of recovery) and (b) any insurance proceeds or other cash receipts or sources of reimbursement actually received as an offset against such Damages (less any costs of recovery) (each person named in clauses (a) and (b), a “Collateral Source”). The Indemnified Party shall use commercially reasonable efforts to seek recovery from all Collateral Sources other than any material customer of the Business; provided, however, that in no event shall an Indemnified Party be required to commence any litigation against any such Collateral Source or otherwise exhaust its remedies against any such Collateral Source as a condition precedent to the recovery of Damages under this Agreement. If the amount to be netted hereunder in connection with a Collateral Source from any payment required under this Article VII and Article VIII is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party to this Article VII and Article VIII, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article VII and Article VIII had such determination been made at the time of such payment, and any excess recovery from a Collateral Source shall be applied to reduce any future payments to be made by an Indemnified Party pursuant to this Article VII and Article VIII.

Damages Net of Insurance, Etc. The amount of any Damages for which indemnification is provided under this Article VII Section 8.06, 11.02 or Article VIII 11.03 shall be net of (ai) any amounts actually recovered by the Indemnified Party pursuant to any indemnification by by, or indemnification agreement with with, any third party party, (less any costs of recovery) and (bii) any insurance proceeds or other cash receipts or sources of reimbursement actually received by the Indemnified Party as an offset against such Damages (less any costs of recovery) (each person Person named in clauses (ai) and (bii), a “Collateral Source”), net of all costs and expenses actually incurred by the Indemnified Party in connection with recovering such Damages from the Collateral Source, and (iii) an amount equal to the present value of the net Tax benefit, if any, attributable to such Damages. The Indemnified Party shall use commercially reasonable efforts to seek recovery from all Collateral Sources other than any material customer of Sources; provided that commercially reasonable efforts will not require the Business; provided, however, that in no event shall an Indemnified Party be required to commence any pursue litigation against any such Collateral Source insurance carrier, customer, supplier, employee, officer, or otherwise exhaust its remedies against any such Collateral Source as a condition precedent to the recovery of Damages under this AgreementAffiliate. If the amount to be netted hereunder in connection with a Collateral Source from any payment required under this Article VII and Article VIII Section 8.06, 11.02 or 11.03 is determined received by an Indemnified Party after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article VII and Article VIII11, the Indemnified Party shall repay pay to the Indemnifying PartyParty (net of all costs and expenses actually incurred by the Indemnified Party in connection with recovering such Damages from the Collateral Source), promptly as soon as reasonably practical after the receipt from such determinationCollateral Source of such payment, any amount that the Indemnifying Party would not have had to pay pursuant to this Article VII and Article VIII 11 had such determination Collateral Source payment been made received by the Indemnified Party prior to or at the time of such payment, and any excess recovery from a Collateral Source shall be applied to reduce any future payments to be made indemnification payment by an Indemnified Party pursuant to this Article VII and Article VIIIthe Indemnifying Party.

Damages Net of Insurance, Etc. The Notwithstanding any provision herein to the contrary, the amount of any Damages for which indemnification is provided under this Article VII or Article VIII Section 7 shall be net of (ai) any amounts actually recovered by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any third party party, (less any costs of recovery) and (bii) any insurance proceeds or other cash receipts or sources of reimbursement actually received as an offset against such Damages (less any costs of recovery) (each person source named in clauses (ai) and (bii), a “Collateral Source”), and (iii) an amount equal to the present value of the tax benefit, if any, available to or taken by the Indemnified Party attributable to such Damages. The Indemnified Parties shall take and shall cause their Affiliates to take all reasonable steps to mitigate any Damages upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy a breach that gives rise to the Damage. Indemnification under this Section 7 shall not be available to Buyer or Seller, as the case may be, unless the Party shall use seeking indemnification under this Section 7 first uses all commercially reasonable best efforts to seek recovery from all Collateral Sources other than Sources. The Parties acknowledge and agree that no right of subrogation shall accrue or inure to the benefit of any material customer of Collateral Source hereunder. The Indemnifying Party may require an Indemnified Party to assign the Businessrights to seek recovery pursuant to the preceding sentence; provided, however, that in no event shall an Indemnified the Indemnifying Party will then be required to commence any litigation against any responsible for pursuing such Collateral Source or otherwise exhaust recovery at its remedies against any such Collateral Source as a condition precedent to the recovery of Damages under this Agreementown expense. If the amount to be netted hereunder in connection with a Collateral Source from any payment required under this Article VII and Article VIII Section 7.1 or Section 7.2 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party to this Article VII and Article VIIISection 7, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article VII and Article VIII Section 7 had such determination been made at the time of such payment, and any excess recovery from a Collateral Source shall be applied to reduce any future payments to be made by an Indemnified Party pursuant to this Article VII and Article VIII.

Damages Net of Insurance, Etc. The amount of any Damages for which indemnification is provided under this Article VII or Article VIII Section 7.5 shall be net of reduced by (ai) any amounts actually recovered by the Indemnified Party Parties pursuant to any indemnification by or indemnification agreement with any third party (less net of any costs of recovery) and incurred to obtain such recovered amounts), (bii) any insurance proceeds or other cash receipts or sources of reimbursement actually received as an offset against such Damages (less net of any costs incurred to obtain such proceeds or reimbursement and all deductions and adjustments to premiums; and no right of recoverysubrogation shall accrue to any insurer or third party indemnitor hereunder) (each person such source named in clauses (ai) and (bii), a “Collateral Source”). The Indemnified Party shall use commercially reasonable efforts ) and (iii) an amount equal to seek recovery from all Collateral Sources other than the Tax benefit, if any material customer (net of the Business; providedTax cost, howeverif any), that in no event shall an Indemnified Party be required attributable to commence any litigation against any such Collateral Source or otherwise exhaust its remedies against any such Collateral Source as a condition precedent to the recovery of Damages under this AgreementDamages. If the amount to be netted reduced hereunder in connection with a Collateral Source from any payment required under this Article VII and Article VIII hereunder is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article VII and Article VIIISection 7.5, the Indemnified Party shall repay to the Indemnifying PartyCompany, as applicable, or to the Buyer, as applicable, promptly after such determination, any amount that the Indemnifying Party would should not have had to pay been paid pursuant to this Article VII and Article VIII Section 7.5 had such determination been made at the time of such payment, and . Indemnification under this Section 7.5 shall not be available to any excess Indemnified Party unless such Indemnified Party first seeks recovery from a any Collateral Source shall be applied to reduce any future payments to be made by an Indemnified Party pursuant to this Article VII and Article VIIIfor such claim.

Damages Net of Insurance, Etc. The amount of any Damages Damage for which indemnification is provided under this Article VII or Article VIII 5 shall be net of (a) in the case of Section 5.1(a), any reserves established in the Interim Balance Sheet or the Closing Balance Sheet, (b) subject to Section 5.7, any amounts actually recovered by the Indemnified Party Indemnitee pursuant to any indemnification by or indemnification agreement with any third party (less any costs of recovery) and a “Third Party Source”); (bc) any insurance proceeds actually recovered by the Indemnitee from a third party insurer with respect to any policy (provided that in the event of a recovery under any such policy, the amount of the recovery shall be offset by any increase in premiums arising as a direct result of the filing or other cash receipts or sources the payment of reimbursement actually received as such claim) under which the Company is insured immediately prior to the Closing Date (an offset against such Damages (less any costs of recovery) “Insurance Source”), (each such person named in clauses (a) ), (b), and (bc), a “Collateral Source”). The Indemnified Party shall use commercially reasonable efforts to seek recovery from all Collateral Sources other than any material customer of the Business; provided, however, that in no event shall and (d) an Indemnified Party be required to commence any litigation against any such Collateral Source or otherwise exhaust its remedies against any such Collateral Source as a condition precedent amount equal to the recovery Tax benefit actually realized by the Indemnitee (assuming for the purposes of Damages under this AgreementSection that the person receiving such Tax benefits is subject to a 40% marginal income tax rate), if any, attributable to such Loss. If the amount to be netted hereunder in connection with a Collateral Source from any payment required under this Article VII and Article VIII Sections 5.1(a) or 5.1(b) is determined received after payment by the Indemnifying Party Indemnitor of any amount otherwise required to be paid to an Indemnified Party Indemnitee pursuant to this Article VII and Article VIII5, the Indemnified Party Indemnitee shall repay to the Indemnifying PartyIndemnitor, promptly after such determinationreceipt, any amount that the Indemnifying Party Indemnitor would not have had to pay pursuant to this Article VII and Article VIII 5 had such determination been made at the time of such payment, and any excess recovery from a Collateral Source shall be applied to reduce any future payments to be made by an Indemnified Party pursuant to this Article VII and Article VIII.

Damages Net of Insurance, Etc. The amount of any Damages Damage for which indemnification is provided under this Article VII Section 8.01 or Article VIII Section 8.02 shall be net of (ai) any accruals or reserves on the Financial Statements referenced in Section 3.07, (ii) any amounts actually recovered by the Indemnified Party an Indemnitee pursuant to any indemnification by or indemnification agreement with any third party (less any costs of recovery) and (biii) any insurance proceeds or other cash receipts or sources of reimbursement actually received as an offset against such Damages (less any costs of recovery) Damage (each person named source of recovery referred to in clauses (aii) and (biii), a “Collateral Source”). The Indemnified Party ) and any Indemnitee shall use commercially reasonable efforts to seek recovery from all Collateral Sources other than any material customer of Sources. The Indemnifying Party may require the BusinessIndemnitee to assign the rights to seek recovery pursuant to the preceding sentence; provided, however, that in no event shall an Indemnified the Indemnifying Party will then be required to commence any litigation against any responsible for pursuing such Collateral Source or otherwise exhaust claim at its remedies against any such Collateral Source as a condition precedent to the recovery of Damages under this Agreementown expense. If the amount to be netted hereunder in connection with a Collateral Source from any payment required under this Article VII and Article VIII Section 8.01 or Section 8.02 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party to this Article VII and Article VIIIthe Indemnitee, the Indemnified Party Indemnitee shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article VII and Article VIII had such determination been made at the time of such payment, and any excess recovery from a Collateral Source shall be applied to reduce any future payments to be made by an Indemnified the Indemnifying Party pursuant to this Article VII and Article VIIISection 8.01 or Section 8.02.