Common use of Determination of Amount of Damages; Mitigation Clause in Contracts

Determination of Amount of Damages; Mitigation. (a) The amount of any Losses for which indemnification is provided under this Article 9 will be limited to the Losses suffered by the indemnified Person and will be computed net of (a) any insurance or other proceeds actually received by the indemnified Person in connection with such Losses (less any increase in premiums associated therewith, deductibles or reasonable costs incurred in obtaining such recovery) (b) any indemnity, contribution or other similar payment the indemnified Person actually received from any Person with respect to such Loss (less reasonable costs incurred in obtaining such recovery), and (c) any other payment or monetary recoupment actually received by the indemnified Person as a result of the events giving rise to the Claim. Any indemnified Person that becomes aware of Losses for which it intends to seek indemnification hereunder will use Commercially Reasonable Efforts in the ordinary course of business consistent with its past practice to pursue Claims and collect any amounts to which it may be entitled under insurance policies; provided, however, such indemnified Person shall not be required to take such actions prior to pursuing an indemnity Claim hereunder. If any third party recovery or insurance recovery is actually received by the indemnified Person after having previously received indemnity Claim proceeds hereunder, such Party will promptly tender to the respective Party an amount equal to such third party recovery or insurance recovery up to the amount of the applicable indemnity Claim proceeds paid to the indemnified Person hereunder.

Determination of Amount of Damages; Mitigation. (a) The amount of any Losses for which indemnification is provided under this Article 9 10 will be limited to the Losses suffered by the indemnified Person and will be computed net of (ai) any insurance or other proceeds actually entitled to be received by the indemnified Person in connection with such Losses Losses, (less any increase in premiums associated therewith, deductibles or reasonable costs incurred in obtaining such recovery) (bii) any indemnity, contribution or other similar payment the indemnified Person actually received is entitled to receive from any Person with respect to such Loss (less reasonable costs incurred in obtaining such recovery)Loss, and (ciii) any other payment or monetary recoupment actually received received, realized or retained by the indemnified Person as a result of the events giving rise to the Claim. Any indemnified Person that becomes aware of Losses for which it intends to seek indemnification hereunder will use Commercially Reasonable Efforts in the ordinary course of business consistent with its past practice commercially reasonable efforts to pursue Claims claims and collect any amounts to which it may be entitled under insurance policiespolicies or from third parties (pursuant to indemnification agreements or otherwise) and will use commercially reasonable efforts to mitigate such Losses; provided that the indemnified Person will promptly notify either (i) the Sellers, if such indemnified Person is Buyer, or (ii) Buyer, if such indemnified Person is a Seller, in each case, of any efforts to mitigate; provided, howeverfurther, that such commercially reasonable efforts shall not require any indemnified Person to commence any litigation, make any material monetary expenditure, or offer or grant any material accommodation (financial or otherwise) to any third party, and any expenditures using such commercially reasonable efforts to mitigate Losses shall not be required to take such actions prior to pursuing an indemnity Claim constitute Losses hereunder. If any third party recovery or insurance recovery is actually received by the indemnified Person realized after having previously received indemnity Claim proceeds hereunder, such Party indemnified Person will promptly tender to the respective Party indemnifying Person an amount equal to such third party recovery or insurance recovery up to the amount of the applicable indemnity Claim proceeds paid to the indemnified Person hereunderrecovery.

Determination of Amount of Damages; Mitigation. (a) The amount of any Losses for which indemnification is provided under this Article 9 will be limited to the Losses suffered by the indemnified Person and will be computed net of (ai) any insurance or other proceeds actually received by the indemnified Person in connection with such Losses Losses, (less ii) any increase in premiums associated therewithTax benefit actually realized (including as a result of any deduction or credit) by the indemnified Person or any of its Affiliates as a result of such Losses, deductibles or reasonable costs incurred in obtaining such recovery) (biii) any indemnity, contribution or other similar payment the indemnified Person actually received from any Person with respect to such Loss (less reasonable costs incurred in obtaining such recovery)Loss, and (civ) any other payment or monetary recoupment actually received received, realized or retained by the indemnified Person as a result of the events giving rise to the Claim. Any indemnified Person that becomes aware of Losses for which it intends to seek indemnification hereunder will use Commercially Reasonable Efforts in the ordinary course of business consistent with its past practice commercially reasonable efforts to pursue Claims claims and collect any amounts to which it may be entitled under insurance policiespolicies or from third parties (pursuant to indemnification agreements or otherwise) and will use commercially reasonable efforts to mitigate such Losses; providedprovided that the indemnified Person will promptly notify either (x) the Seller, however, if such indemnified Person shall not be required is the Buyer, or (y) the Buyer, if such indemnified Person is the Seller, in each case, of any efforts to take such actions prior to pursuing an indemnity Claim hereundermitigate. If any third party recovery or insurance recovery is actually received by the indemnified Person realized after having previously received indemnity Claim proceeds hereunder, such Party indemnified Person will promptly tender to the respective Party indemnifying Person an amount equal to such third party recovery or insurance recovery up equal to the amount of the applicable indemnity Claim proceeds paid by the indemnifying Person. The Buyer Indemnified Parties shall not be entitled to indemnification pursuant to this Article 9 for any Loss underlying such indemnification claim to the indemnified Person hereunderextent that such Loss (or any part thereof) arises, or is increased, as a result of a change after the Closing in any accounting principle, method or policy (including any such change in GAAP or application thereof). In no event shall the Seller have any Liability for indemnification under this Article 9 for any Losses to the extent such Losses are caused or initiated by any action or omission by any Buyer Indemnified Party or the Seller at the request or direction of any Buyer Indemnified Party, including to the extent any Losses resulted from the bad faith, gross negligence or willful misconduct of such Buyer Indemnified Parties.

Determination of Amount of Damages; Mitigation. (a) The amount of any Losses for which indemnification is provided under this Article 9 10 will be limited to the Losses suffered by the indemnified Person and will be computed net of (ai) any insurance or other proceeds actually entitled to be received by the indemnified Person in connection with such Losses Losses, (less any increase in premiums associated therewith, deductibles or reasonable costs incurred in obtaining such recovery) (bii) any indemnity, contribution or other similar payment the indemnified Person actually received is entitled to receive from any Person with respect to such Loss (less reasonable costs incurred in obtaining such recovery)Loss, and (ciii) any other payment or monetary recoupment actually received received, realized or retained by the indemnified Person as a result of the events giving rise to the Claim. Any indemnified Person that becomes aware of Losses for which it intends to seek indemnification hereunder will use Commercially Reasonable Efforts in the ordinary course of business consistent with its past practice commercially reasonable efforts to pursue Claims claims and collect any amounts to which it may be entitled under insurance policiespolicies or from third parties (pursuant to indemnification agreements or otherwise) and will use commercially reasonable efforts to mitigate such Losses; provided that the indemnified Person will promptly notify either (i) the Sellers, if such indemnified Person is Buyer, or (ii) Buyer, if such indemnified Person is a Seller, in each case, of any efforts to mitigate; provided, howeverfurther, that such commercially reasonable efforts shall not require any indemnified Person to commence any litigation, make any material monetary expenditure, or offer or grant any material accommodation (financial or otherwise) to any third party, and any expenditures using such commercially reasonable efforts to mitigate Losses shall not be required to take such actions prior to pursuing an indemnity Claim constitute Losses hereunder. If any third party recovery or insurance recovery is actually received by the indemnified Person realized after having previously received indemnity Claim proceeds hereunder, such Party indemnified Person will promptly tender to the respective Party indemnifying Person an amount equal to such third party recovery or insurance recovery up recovery. (b) The Parties agree that no indemnified Person shall have any recourse under this Article 10 for any Losses that such indemnified Person would not have suffered had such indemnified Person exercised commercially reasonable efforts to mitigate such Losses within a reasonable amount of time following the discovery by such indemnified Person of the fact, event or circumstance giving rise to such Losses (and for an indemnified Person that is not a natural Person, the bringing to the amount attention of the applicable indemnity Claim proceeds paid to the indemnified Person hereunder.a responsible officer thereof of such fact, event or circumstance). ARTICLE 11