Common use of Determination of Damages Clause in Contracts

Determination of Damages. With respect to each indemnification obligation contained in this Article VI, all Losses shall be net of any third-party insurance and indemnity proceeds that are actually obtained by the Indemnified Party in connection with the facts giving rise to the right of indemnification, less all reasonable and documented out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented attorneys’ fees and any deductible) and less any Taxes incurred in respect of the amounts so recovered from any insurer or third party (it being agreed that if third-party insurance or indemnification proceeds in respect of such facts are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds less all reasonable and documented out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented attorneys’ fees and any deductible) and less any Taxes incurred in respect of the amounts so recovered from any insurer or third party shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made). Each Party shall take all reasonable steps to mitigate its Losses upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses. If an Indemnifying Party makes any payment for any Losses suffered or incurred by an Indemnified Party pursuant to the provisions of this Article VI, such Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party with respect to such Losses and with respect to the claim giving rise to such Losses.

Determination of Damages. With respect Notwithstanding anything to each indemnification obligation contained in this Article VIthe contrary: (a) Prior to determining whether there has been a Covered Claim, all Losses shall be net the amount of any third-party Damages shall first be reduced by (i) any condemnation award or insurance and indemnity proceeds that are actually obtained by which any member of the Indemnified Party Acquiror Group receives in connection with the facts giving rise to the right such item of indemnification, less all reasonable Damages and documented out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such (ii) any insurance proceeds or third-party recovery (including reasonable in addition to, but not in duplication of, the insurance proceeds described in clause (i) hereof) that would be available under the D&O Policies and documented attorneys’ fees and any deductiblethe Insurance Policies if the Acquiror Parties were to comply in all respects with the covenants under Section 7.09(c) and less Section 7.10 hereof. The Acquiror Parties and Surviving Company shall pursue all such reimbursements or insurance proceeds that may reasonably be expected to reduce or eliminate any Taxes incurred in respect Damages. If any member of the amounts so recovered from Acquiror Group receives any insurer reimbursements or third party (it being agreed that if third-party insurance or indemnification proceeds in respect of such facts are recovered by after a payment is made which relates thereto, the Indemnified Party subsequent Acquiror Parties shall promptly pay, pursuant to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligationSection 3.03 hereof, such proceeds less all reasonable and documented out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented attorneys’ fees and any deductible) and less any Taxes incurred in respect of the amounts so recovered from any insurer or third party shall be promptly remitted to the Indemnifying Party to the extent amount of the indemnification payment made). Each Party shall take all reasonable steps to mitigate its Losses upon as would not have been paid had the reimbursements or insurance proceeds reduced the original payment (and after becoming aware of any event which would reasonably be expected to give rise to any Losses. If an Indemnifying Party makes any payment for any Losses suffered or incurred by an Indemnified Party pursuant to the provisions of this Article VI, such Indemnifying Party repayment shall be subrogated, a credit against any applicable indemnification threshold or limitation set forth in Section 10.06) at such time or times as and to the extent that such amount reimbursements or insurance proceeds is actually received. In addition, the Acquiror Group shall have Damages hereunder only to the extent that reserves for such Claims (after the insurance proceeds and reimbursements described in the first sentence of such paymentthis Section 10.07(a)) have not been accrued for in the financial statements of the Company as of the Closing Date. (b) Except to the extent that any of the insurance coverage would thereby be reduced, to each of the parties hereby waives any and all rights of recovery against any other party thereto, or against the officers, employees, agents or representatives of any party thereto, for loss of or damage to its property or the property of others under its control, if and remedies of to the Indemnified Party to extent such loss or damage is covered by any insurance benefits or other claims of the Indemnified Party with respect policy in force applicable to such Losses and with respect to the claim giving rise to such Lossesclaim.

Determination of Damages. With respect (a) The parties hereby acknowledge and agree that qualifications as to each indemnification obligation materiality or “Material Adverse Effect” (or any similar qualification) in any representation, warranty or covenant set forth herein or in any other document contemplated by this Agreement shall be ignored both for the purpose of determining whether a breach of a representation, warranty or covenant has occurred, and for determining the amount of applicable Damages, which shall be calculated without regard to any such qualifiers contained in this Article VIany such breached representation, all Losses warranty or covenant. (b) The amount of any Damages subject to indemnification under Section 7.1 or 7.2 shall be calculated net of (i) any Tax benefit realized as an actual reduction in cash taxes payable (including as a result of the receipt of a refund of Taxes previously paid) by the Indemnitee or its Affiliates on account of such Damages in the taxable year in which or prior to which the applicable indemnification payment is made (a “Tax Benefit”) and (ii) any insurance proceeds (excluding any recovery under the R&W Insurance Policy) or any indemnity, contribution or other similar payment actually recovered by the Indemnitee from any third party with respect thereto, net of any third-party premiums and costs of recovery, if any (and Parent will use, and will cause each of its Affiliates to use, its reasonable best efforts to obtain any such insurance proceeds or similar payment). If Parent (or one if its Affiliates, including the Acquired Companies from and indemnity proceeds that are actually obtained after the Closing) or Seller (or one of its Affiliates), as applicable, receives a Tax Benefit on account of Damages subject to indemnification under Sections 7.1 or 7.2 within two years of such Damages being incurred, and such Tax Benefit is received after an indemnification payment is made to it (or one of its Affiliates), Parent or Seller, as applicable, shall promptly pay to the other by wire transfer of immediately available funds to the account or accounts designated by the Indemnified Party other the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized as an actual reduction in connection cash taxes payable (including as a result of the receipt of a refund of Taxes previously paid) by Parent or Seller (or their respective Affiliates), as applicable. (c) No Parent Indemnitee shall have any right to indemnification hereunder with respect to any Damages or alleged Damages to the extent such Damages or alleged Damages are expressly included in the adjustment to the Merger Consideration contemplated by Section 1.8 (with the facts giving rise intent of this provision to merely be to avoid “double counting” and not to limit the scope of the representations and warranties hereunder). (d) For clarity, any Indemnified Party’s right to indemnification for Damages or other remedies pursuant to this ARTICLE VII shall not be affected or deemed waived by reason of indemnificationany investigation conducted, less all reasonable and documented out-of-pocket costs and expenses incurred or any knowledge or information acquired (or capable of being acquired), by such Indemnified Party (or any Representatives of such Indemnified Party) at any time, whether before or after the Closing Date, relating to the facts, matters or circumstances constituting or resulting in connection with obtaining such insurance proceeds the breach or third-party recovery inaccuracy (including reasonable and documented attorneys’ fees and any deductiblealleged or otherwise) and less any Taxes incurred in respect of the amounts so recovered from any insurer representation, warranty, covenant or third party (it being agreed that if third-party insurance or indemnification proceeds in respect of such facts are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds less all reasonable and documented out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented attorneys’ fees and any deductible) and less any Taxes incurred in respect of the amounts so recovered from any insurer or third party shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made). Each Party shall take all reasonable steps to mitigate its Losses upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses. If an Indemnifying Party makes any payment for any Losses suffered or incurred by an Indemnified Party pursuant to the provisions of this Article VI, such Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party with respect to such Losses and with respect to the claim agreement giving rise to such LossesDamages.

Determination of Damages. With respect to each indemnification obligation contained in The amount of any Damages recoverable under this Article VI, all Losses IX shall be net reduced by any amounts actually received by any Indemnified Party, directly or indirectly, in the form of third-party insurance proceeds or indemnification payments, in respect of Claims related to such Damages, and if any Indemnified Party actually receives any such third-party insurance proceeds or indemnification payments, directly or indirectly, after the settlement of any indemnification claim under this Article IX, then such Indemnified Party shall promptly remit to the applicable Indemnifying Party the amount of such third-party insurance proceeds or indemnification payments, in each case that are actually realized, net, in the case of any third-party insurance and indemnity proceeds that are actually obtained by the proceeds, of amounts required to account for any reasonably foreseeable premium increases or other costs associated with making such insurance claim. Each Indemnified Party in connection with shall make commercially reasonable efforts to pursue (and after the facts giving rise Closing Buyer shall cause the Company to the right of indemnification, less all make commercially reasonable and documented out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented attorneys’ fees and any deductibleefforts to pursue) and less any Taxes incurred in respect of the amounts so recovered from any insurer or third party (it being agreed that if claims for third-party insurance or indemnification proceeds (with respect to Buyer, for those policies maintained by the Company prior to the Closing Date) in respect of such facts are recovered by the Indemnified Party subsequent any Indemnifiable Damage under this Article IX to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds less all reasonable and documented out-of-pocket costs and expenses incurred by same extent such Indemnified Party would pursue such claims in connection with obtaining the ordinary course of business if such insurance proceeds or third-party recovery (including reasonable and documented attorneys’ fees and any deductible) and less any Taxes incurred in respect of the Indemnified Party did not have a right to indemnification under this Article IX. Any amounts so recovered from any insurer or third party payable under this Article IX shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made). Each Party shall take all reasonable steps to mitigate its Losses upon and after becoming aware payable without duplication of any event which would reasonably be expected to give rise other amount payable pursuant to any Losses. If an Indemnifying Party makes any payment for any Losses suffered or incurred by an Indemnified Party pursuant to the provisions other provision of this Article VI, such Agreement. No Indemnifying Party shall be subrogatedliable for any Damages that constitute punitive damages, to the extent of such paymentspecial damages or speculative damages, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party except with respect to such Losses and with respect damages payable by any Indemnified Party to the claim giving rise a third party pursuant to a Claim brought by such Lossesthird party as set forth in this Article IX.