Common use of Losses Net of Insurance Clause in Contracts

Losses Net of Insurance. The amount of any Loss for which indemnification is provided under Section 9.2 or Section 9.3 shall be net of (a) any amounts actually recovered by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any non-affiliated third party, (b) any insurance proceeds actually received as an offset against such Loss, in each case, net of any costs of recovery, and (c) any Tax savings realized by the Indemnified Party or its Affiliates (calculated on a “with and without” basis) with respect to such Loss in the year in which such indemnification payment is made or any prior taxable year. The Indemnified Party shall use commercially reasonable efforts to recover any such indemnification or insurance proceeds if and to the extent available. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article IX, 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 IX had such determination been made at the time of such payment. The Indemnifying Party may require, as a condition to the provision of any indemnification hereunder, that the Indemnified Party execute an undertaking consistent with its obligations set forth in this Section 9.7. Purchaser shall promptly assign or subrogate to Parent or its designated Affiliates any claim against the insurer of the R&W Insurance Policy, to the extent Purchaser has funded a claim and such claim may reasonably mitigate any Losses that Parent is liable for pursuant to Section 9.2.

Losses Net of Insurance. The amount of any Loss for which indemnification is provided under Section 9.2 10.2 or Section 9.3 10.3 shall be net of (ai) any specific accruals or reserves on the Financial Statements referenced in Section 4.7(a), (ii) any amount for which a reserve or accrual is included in final Closing Working Capital or which has otherwise been taken into account as an adjustment to the Final Purchase Price pursuant to the definition thereof for purposes of the calculation of the Final Purchase Price, (iii) any amounts actually recovered by the Indemnified Party (net of any Taxes and costs of investigation of the underlying claim and of collection) pursuant to any indemnification by or indemnification agreement with any non-affiliated third party, Person (bother than this Agreement) and (iv) any insurance proceeds actually (net of any Taxes and any costs of investigation of the underlying claim and of collection) received as an offset against such Loss, Loss (each source of recovery referred to in each case, net of any costs of recovery, clauses (iii) and (c) any Tax savings realized by the Indemnified Party or its Affiliates (calculated on iv), a “with and without” basis) with respect to such Loss in the year in which such indemnification payment is made or any prior taxable year. The Indemnified Party shall use commercially reasonable efforts to recover any such indemnification or insurance proceeds if and to the extent availableCollateral Source”). If the amount to be netted hereunder in connection with a Collateral Source from any payment required under Section 9.2 10.2 or Section 9.3 10.3 is determined received after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article IXX, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determinationreceipt, any amount that the Indemnifying Party would not have had to pay pursuant to this Article IX X had such determination been made receipt occurred at the time of such payment. The Indemnifying Party may require, as In the event that Purchaser makes a condition claim against Sellers for indemnification pursuant to this Article X and the subject matter of such indemnification claim relates to the provision potential liability of any indemnification hereundera Collateral Source from which Purchaser may have otherwise asserted a claim for Losses, that Purchaser shall, at Sellers’ request and expense following the full satisfaction by Sellers of their obligations under this Article X, subrogate its rights to such claim in favor of Sellers and assign all of its rights in respect of such claim to Sellers. Each Indemnified Party execute an undertaking consistent with its obligations set forth in this Section 9.7. Purchaser shall promptly assign or subrogate take commercially reasonable steps to Parent or its designated Affiliates any claim against the insurer of the R&W Insurance Policy, to the extent Purchaser has funded a claim and such claim may reasonably mitigate any Losses that Parent is as soon as reasonably practicable after such Indemnified Party becomes aware of any event which does, or could reasonably be expected to, give rise to any such Losses. Notwithstanding any provision to the contrary, Purchaser, the Sponsors and/or any Lender or arranger under the Debt Commitment Letters or any other source of Debt Financing and their respective Affiliates shall not be liable for pursuant or obligated to Section 9.2pay consequential, special, multiple, punitive or exemplary damages, including damages arising from loss of profits, business opportunities or goodwill in respect of any breach or failure to comply with this Agreement or any transactions contemplated hereby (including the Financings) or any damages, limited to each Sponsor’s pro rata share with regard to Sponsors obligations, in excess of the Reverse Break-Up Fee.

Losses Net of Insurance. Etc. The amount of any Loss for which indemnification is provided under Section 9.2 or Section 9.3 7.2 shall be net of (ai) any amounts actually recovered by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any non-affiliated third party, (bii) any insurance proceeds actually received as an offset against or other cash receipts or sources of reimbursement recoverable in respect of such Loss, Loss (each source named in each case, net of any costs of recovery, clauses (i) and (cii), a "Collateral Source"), (iii) any an amount equal to the Tax savings realized by the Indemnified Party or its Affiliates (calculated on a “with and without” basis) with respect benefit attributable to such Loss and (iv) any specific accruals or reserves (or overstatement of liabilities in respect of actual liability) included in the year in which such indemnification payment is made or any prior taxable yearFinancial Information. The Indemnified Party parties shall use commercially take and shall cause their Affiliates to take all reasonable steps to mitigate any Loss upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto. Indemnification under this Article VII shall not be available to Buyer or Seller, as the case may be, unless the party seeking indemnification under this Article VII first uses all reasonable efforts to recover any such indemnification seek recovery from all Collateral Sources. The parties acknowledge and agree that no right of subrogation shall accrue or insurance proceeds if and inure to the extent availablebenefit of any Collateral Source hereunder. The Indemnifying Party may require an Indemnified Party to assign the rights to seek recovery from a Collateral Source; provided, that the Indemnifying Party will then be responsible for pursuing such recovery at its own expense. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 7.2 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article IXVII, 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 IX VII had such determination been made at the time of such payment. The Indemnifying Party may require, as a condition to the provision of any indemnification hereunder, that the Indemnified Party execute an undertaking consistent with its obligations set forth in this Section 9.7. Purchaser shall promptly assign or subrogate to Parent or its designated Affiliates any claim against the insurer of the R&W Insurance Policy, to the extent Purchaser has funded a claim and such claim may reasonably mitigate any Losses that Parent is liable for pursuant to Section 9.2...

Losses Net of Insurance. The amount of any Loss for which indemnification is provided under Section 9.2 Sections 8.2 or Section 9.3 8.8 shall be net of (a) any amounts actually recovered by accruals or reserves included in the Indemnified Party pursuant to any indemnification by or indemnification agreement with any non-affiliated third party, calculation of Net Working Capital on the Final Closing Statement and (b) any insurance proceeds actually received as an offset against such Loss, in each case, net of any costs of recovery, and (c) any Tax savings realized by the Indemnified Party or its Affiliates (calculated on a “with and without” basis) recovered with respect to such Loss (net of all costs and expenses incurred in connection with the year in which recovery of such indemnification payment is made or any prior taxable yearproceeds). The Indemnified Party parties shall use take and shall cause their Subsidiaries to take all commercially reasonable efforts steps to recover mitigate any Loss upon an executive officer of such indemnification or insurance proceeds party becoming aware of any event that gives rise thereto, including, if and necessary to mitigate the Loss, incurring only commercially reasonable costs to remedy a breach that gives rise to the extent availableLoss. In addition, Buyer shall, and shall cause its Affiliates to, reasonably cooperate to obtain the proceeds of any insurance applicable to a Loss for which indemnification is provided under Sections 8.2 or 8.8, including the insurance policies to be maintained pursuant to Section 5.19. If the amount to be netted hereunder from any payment required under Section 9.2 Sections 8.2 or Section 9.3 8.8 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article IXVIII, 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 IX VIII had such determination been made at the time of such payment. The In the event that an Indemnified Party has rights against any third party with respect to any occurrence, claim or loss that results in a payment by an Indemnifying Party may requireunder this Article VIII, as a condition such Indemnifying Party shall be subrogated to such rights to the provision extent of any indemnification hereunder, such payment; provided that until the Indemnified Party execute an undertaking consistent with its obligations set forth in this Section 9.7. Purchaser shall promptly assign or subrogate to Parent or its designated Affiliates any claim against the insurer recovers full payment of the R&W Insurance PolicyLoss, any and all claims of the Indemnifying Party against any such third party on account of said indemnity payment is hereby expressly made subordinate and subject in right of payment to the Indemnified Party’s rights against such third party. Without limiting the generality or effect of any other provision hereof, each Indemnified Party and Indemnifying Party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights detailed herein. For the avoidance of doubt, no Indemnified Party shall be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent Purchaser such Indemnified Party (or its Affiliate) has funded a claim and been indemnified or reimbursed for such claim may reasonably mitigate amount under any Losses that Parent is liable for pursuant to Section 9.2other provision of this Agreement.

Losses Net of Insurance. The amount of any Loss for which indemnification is provided under Section 9.2 or Section 9.3 this Article XI shall be net of (a) any amounts actually recovered by the applicable Indemnified Party pursuant to any indemnification by or indemnification agreement with any non-affiliated third party, and (b) any insurance proceeds actually or other cash receipts or sources of reimbursement received as an offset against such Loss, in each case, net of any costs of recovery, and (c) any Tax savings realized by the Indemnified Party or its Affiliates (calculated on a “with and without” basis) with respect to such Loss in (the year in which such indemnification payment is made or any prior taxable year. The Indemnified Party shall use commercially reasonable efforts to recover source of any such indemnification amounts referred to in clause (a) or (b), a “Collateral Source”), in each case net of any Taxes imposed or reasonable out-of-pocket costs incurred in connection with the collection of such insurance proceeds if and to the extent availableproceeds, cash receipts or sources of reimbursement. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 this Article XI is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article IXXI, 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 IX XI had such determination been made at the time of such payment. The Indemnifying Party may requireFor the avoidance of doubt, as a condition to the provision of any indemnification hereunder, that the no Indemnified Party execute an undertaking consistent with its obligations shall have any obligation under this Agreement to seek recovery from any third parties, to seek recovery under any insurance policies or, except as set forth in this Section 9.7. Purchaser shall promptly assign or subrogate to Parent or its designated Affiliates any claim against the insurer of the R&W Insurance Policy8.4, to the extent Purchaser has funded a claim and such claim may reasonably mitigate maintain any Losses that Parent is liable insurance policies for pursuant to Section 9.2any period of time.

Losses Net of Insurance. The amount of any Loss or Company Loss for which indemnification is provided under Section Sections 9.2 or Section and 9.3 shall be net of (ai) any amounts actually recovered by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any non-affiliated third party, (bii) any insurance proceeds actually or other cash receipts or sources of reimbursement received as an offset against such Loss, Loss or Company Loss (each source named in each case, net of any costs of recovery, clauses (i) and (cii), a "Collateral Source") any and (iii) an amount equal to the present value of the Tax savings realized benefit, if any, available to or taken by the Indemnified Party or its Affiliates (calculated on a “with and without” basis) with respect attributable to such Loss in the year in which such indemnification payment is made or any prior taxable yearLoss. The Indemnified Party parties shall take and shall cause their Affiliates to take all reasonable steps to mitigate any Loss or Company Loss 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 Loss or Company Loss. Indemnification under this Section 9 shall not be available to the Buyer or the Company, as the case may be, to the extent the party seeking indemnification under this Section 9 fails to first use commercially reasonable efforts to recover any such indemnification seek recovery from all Collateral Sources. The parties acknowledge and agree that no right of subrogation shall accrue or insurance proceeds if and inure to the extent availablebenefit of any Collateral Source hereunder. The Indemnifying Party may require an Indemnified Party to assign the rights to seek recovery pursuant to the preceding sentence; provided, that the Indemnifying Party will then be responsible for pursuing such recovery at its own expense. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article IXSection 9, 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 IX Section 9 had such determination been made at the time of such payment. The Indemnifying Party may require, as a condition to the provision of any indemnification hereunder, that the Indemnified Party execute an undertaking consistent with its obligations set forth in this Section 9.7. Purchaser shall promptly assign or subrogate to Parent or its designated Affiliates any claim against the insurer of the R&W Insurance Policy, to the extent Purchaser has funded a claim and such claim may reasonably mitigate any Losses that Parent is liable for pursuant to Section 9.2.