Limitations; Net Losses; Subrogation; Mitigation; Materiality Clause Samples

Limitations; Net Losses; Subrogation; Mitigation; Materiality. (a) ▇▇▇▇▇▇▇▇ shall not be required to indemnify and hold harmless any Buyer Indemnified Party pursuant to Section 12.03(a) until the aggregate amount of Buyer Indemnified Parties’ Losses resulting from any breach or inaccuracy of the representations and warranties contained in this Agreement exceeds the Deductible, and then only to the extent of such Losses in excess of the Deductible; provided, however, that the cumulative indemnification obligation of ▇▇▇▇▇▇▇▇ under Section 12.03(a) shall in no event exceed the Cap; provided further, however, that in the case of any breach or inaccuracy of any ▇▇▇▇▇▇▇▇ Fundamental Representations, (A) the Deductible shall not apply and (B) the Cap shall only apply in respect of claims asserted by the Buyer Indemnified Parties after the second (2nd) anniversary of the Closing Date; provided further, that the foregoing limitations shall not apply in connection with claims for actual fraud. (b) From and after first (1st) anniversary of the Closing Date (the “Deductible Dropdown Date”), the Deductible shall be reduced to Four Million Five Hundred Fifty Thousand Dollars ($4,550,000); provided, that to the extent that on or prior to the Deductible Dropdown Date, a Buyer Indemnified Party has notified Seller pursuant to Section 12.04(a) of an indemnification claim under Section 12.03(a), then the initial Deductible of Six Million Eight Hundred Twenty Five Thousand Dollars ($6,825,000) shall continue to apply solely with respect to any such Loss or any Loss that arises out of, relates to or results from the breach identified in such notice of indemnification claim made on or prior to the Deductible Dropdown Date; provided further, that in no circumstances shall the Deductible or the reduced Deductible apply to any claim for actual fraud any indemnification claim for breach of any ▇▇▇▇▇▇▇▇ Fundamental Representations. (c) Notwithstanding anything contained herein to the contrary, the amount of any Losses incurred or suffered by an Indemnified Party shall be calculated after giving effect to (i) any insurance proceeds received by the Indemnified Party (or any of its Affiliates) with respect to such Losses and (ii) any recoveries obtained by the Indemnified Party (or any of its Affiliates) from any other third party, in each case, net of any deductibles or retentions paid (or that reduce the amount of recovery) by the Indemnified Party and any reasonable costs and expenses incurred in obtaining such proceeds and recoveries. Each In...