Common use of Determination of Amount of Adverse Consequences Clause in Contracts

Determination of Amount of Adverse Consequences. The Adverse Consequences giving rise to any indemnification obligation hereunder shall be limited to the actual loss suffered by the Indemnified Party (reduced by any insurance proceeds or other third-party payments received, realized or retained by the Indemnified Party as a result of the events giving rise to the claim for indemnification net of any expenses related to the receipt of such proceeds as well as any Tax Benefit recognized by the Indemnified Party (or the affiliated group of which it is a member) occasioned by such loss or damage). Any Indemnified Party seeking indemnity hereunder shall use commercially reasonable efforts to seek coverage (including both costs of defense and indemnity) under applicable insurance policies with respect to any such Adverse Consequences. In the event that a Buyer Indemnitee receives a payment under any insurance policy or other proceeds from a third party that would have reduced, pursuant to this Section 8(g), an indemnification payment made by a Party hereunder if such payment under such insurance policy or other third-party source had been received prior to such indemnification payment, such Indemnified Party shall refund to the applicable Party an aggregate amount that equals the net amount (taking into account any costs or expenses, including reasonable attorney’s fees, associated with submitting or otherwise making a claim for, or collecting, such payment) of the reduction that would have so resulted from its earlier receipt of such payment under such insurance policy or from such third party. The amount of the loss and the amount of the indemnity payment shall be computed by taking into account the timing of the loss or payment, as applicable, using a Prime Rate plus 2% interest or discount rate, as appropriate. Upon the request of the Indemnifying Party, the Indemnified Party shall provide the Indemnifying Party with information sufficient to allow the Indemnifying Party to calculate the amount of the indemnity payment in accordance with this Section 8(g). An Indemnified Party shall take all reasonable steps to mitigate damages in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim and, if such costs and expenses cannot be avoided, to minimize the amount thereof.

Determination of Amount of Adverse Consequences. The Adverse Consequences giving rise to any indemnification obligation hereunder shall be limited to the actual loss suffered by the Indemnified Party (i.e. reduced by any insurance proceeds or other third-party payments payment or recoupment received, realized or retained by the Indemnified Party as a result of the events giving rise to the claim for indemnification net of any expenses related to the receipt of such proceeds as well as proceeds, payment or recoupment, including retrospective premium adjustments, if any), but not any Tax Benefit recognized by reduction in Taxes of the Indemnified Party (or the affiliated group of which it is a member) occasioned by such loss or damage). Any Indemnified Party seeking indemnity hereunder shall use commercially reasonable efforts to seek coverage (including both costs of defense and indemnity) under applicable insurance policies with respect to any such Adverse Consequences. In the event that a Buyer Indemnitee receives a payment under any insurance policy or other proceeds from a third party that would have reduced, pursuant to this Section 8(g), an indemnification payment made by a Party hereunder if such payment under such insurance policy or other third-party source had been received prior to such indemnification payment, such Indemnified Party shall refund to the applicable Party an aggregate amount that equals the net amount (taking into account any costs or expenses, including reasonable attorney’s fees, associated with submitting or otherwise making a claim for, or collecting, such payment) of the reduction that would have so resulted from its earlier receipt of such payment under such insurance policy or from such third party. The amount of the actual loss and the amount of the indemnity payment shall be computed by taking into account the timing of the loss or payment, as applicable, using a Prime Rate plus 2% two percent interest or discount rate, as appropriateappropriate (not to exceed the maximum rate permitted by applicable Law). Upon the request of the Indemnifying Party, the Indemnified Party shall provide the Indemnifying Party with information sufficient to allow the Indemnifying Party to calculate the amount of the indemnity payment in accordance with this Section 8(g8(e). An Indemnified Party shall take all reasonable steps to mitigate damages in respect of any claim for which it is seeking indemnification and shall use commercially reasonable efforts to avoid any costs or expenses associated with such claim and, if such costs and expenses cannot be avoided, to minimize the amount thereof. Nothing in this Section 8 is intended to allow an indemnified Person to receive duplicative payments in connection with a Party’s Obligations to release, indemnify and hold harmless. Without in any way limiting the generality of the preceding sentence, although an indemnified Person may seek recovery for an Adverse Consequence under any Section under which such Adverse Consequence may be recoverable, to the extent an Indemnified Party has been paid for an Adverse Consequence under one Section of this Agreement, such Indemnified Party shall not be permitted to seek payment for that Adverse Consequence under another Section of this Agreement, even though that Adverse Consequence is of a type which would be covered by each such Section.

Determination of Amount of Adverse Consequences. The Adverse Consequences giving rise to any indemnification obligation hereunder shall be limited to the actual loss suffered by the Indemnified Party (reduced by any insurance proceeds or other third-party payments received, realized or retained by the Indemnified Party as a result of the events giving rise to the claim for indemnification net of any expenses related to the receipt of such proceeds as well as any Tax Benefit recognized by the Indemnified Party (or the affiliated group of which it is a member) occasioned by such loss or damage). Any Indemnified Party seeking indemnity hereunder shall use commercially reasonable efforts to seek coverage (including both costs of defense and indemnity) under applicable insurance policies with respect to any such Adverse Consequences. In the event that a Buyer Indemnitee receives a payment under any insurance policy or other proceeds from a third party that would have reduced, pursuant to this Section 8(g), an indemnification payment made by a Party hereunder if such payment under such insurance policy or other third-party source had been received prior to such indemnification payment, such Indemnified Party shall refund to the applicable Party an aggregate amount that equals the net amount (taking into account any costs or expenses, including reasonable attorney’s fees, associated with submitting or otherwise making a claim for, or collecting, such payment) of the reduction that would have so resulted from its earlier receipt of such payment under such insurance policy or from such third party. The amount of the loss and the amount of the indemnity payment shall be computed by taking into account the timing of the loss or payment, as applicable, using a Prime Rate plus 2% interest or discount rate, as appropriate. Upon the request of the Indemnifying Party, the Indemnified Party shall provide the Indemnifying Party with information sufficient to allow the Indemnifying Party to calculate the amount of the indemnity payment in accordance with this Section 8(g9(g). An Indemnified Party shall take all reasonable steps to mitigate damages in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim and, if such costs and expenses cannot be avoided, to minimize the amount thereof. For the avoidance of doubt, any indemnification obligation pursuant to this Agreement shall be determined based on the Indemnifying Party’s proportionate effective share (based on effective ownership interest percentages in the relevant Subject Company, when applicable), subject to any limitations on indemnification otherwise provided in this Agreement, including “deductibles” and “caps.” Below are some examples: (i) If a Party’s representation and warranty in either Section 3(b) or Section 4(b) (Authorization of Transaction) were to be inaccurate, the amount of the related Adverse Consequences would be 100% of effects of such inaccuracy; (ii) If a Party’s representation and warranty in Section 5(e) (Legal Compliance of Subject Companies) relating to JV were to be inaccurate, the amount of the related Adverse Consequences would be such Party’s ownership interest percentage in JV (90.67% for the Contributor and 9.33% for the Parent) multiplied by the effects of such inaccuracy; (iii) If a Party’s representation and warranty in Section 5(e) (Legal Compliance of Subject Companies) relating to Holdings were to be inaccurate, the amount of the related Adverse Consequences would be such Party’s effective ownership interest percentage in Holdings (68.0025% for the Contributor and 31.9975% for the Parent) multiplied by the effects of such inaccuracy; and (iv) If a Party’s representation and warranty in Section 5(e) (Legal Compliance of Subject Companies) relating to Marine were to be inaccurate, the related Adverse Consequences would be such Party’s effective ownership interest percentage in Marine (51% for the Contributor and 49% for the Parent) multiplied by the effects of such inaccuracy, which would be consistent with the methodology set forth in Section 6(e).