Common use of Mitigation; Additional Indemnification Provisions Clause in Contracts

Mitigation; Additional Indemnification Provisions. Each Indemnified Party shall use commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article VIII, and such Indemnified Party shall be entitled to recover from the Indemnifying Party any costs or expenses incurred to mitigate such claim or liability. For purposes of this Agreement, Losses shall be net of any Tax Benefit actually realized (either by cash refund or actual reduction of Taxes otherwise payable) and net of any Tax Detriment actually realized (either by a reduction in cash refund or increase in Taxes otherwise payable) by the Indemnified Party or its Affiliates during or prior to the Tax period in which the indemnification payment is made arising in connection with the accrual, incurrence or payment of any such Losses. The Indemnified Party shall use commercially reasonable efforts (exercising its reasonable discretion in relation to the availability of such Tax Benefit and ability not to suffer such Tax Detriment) to claim such Tax Benefit and not suffer such Tax Detriment. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and expenses from insurers of such Indemnified Party under applicable insurance policies so as to reduce the amount of any Losses hereunder; provided that actual recovery of any insurance shall not be a condition to the Indemnifying Party’s obligation to make indemnification payments to the Indemnified Party in accordance with the terms of this Agreement. If the Indemnifying Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for Loss, after an indemnification payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall promptly reimburse the Indemnifying Party for such indemnification payment up to the amount so received or realized (on an after-tax basis) by the Indemnified Party. No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including damages for lost profits or opportunity costs or damages based upon a multiple of earnings or other financial measure, except for those of the foregoing paid to third parties in an otherwise indemnifiable matter.

Mitigation; Additional Indemnification Provisions. Each Indemnified Party shall use commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article VIII, and such Indemnified Party shall be entitled to recover from the Indemnifying Party any costs or expenses incurred to mitigate such claim or liabilityXII. For purposes of this Agreement, Losses shall be net of any Tax Benefit actually realized (either by cash refund or actual reduction of Taxes otherwise payable) and net of any Tax Detriment actually realized (either by a reduction in cash refund or increase in Taxes otherwise payable) by the Indemnified Party or its Affiliates during or prior to the Tax period in which the indemnification payment is made arising in connection with the accrual, incurrence or payment of any such Losses. The Indemnified Party shall use commercially reasonable efforts (exercising its reasonable discretion in relation to the availability of such Tax Benefit and ability not to suffer such Tax Detriment) to claim such Tax Benefit and not suffer such Tax Detriment. For purposes of this Agreement, Losses shall be calculated after giving effect to any amounts recovered from third parties, including amounts recovered under insurance policies with respect to such Losses, net of any costs to recover such amounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and expenses from insurers of such Indemnified Party under applicable insurance policies so as to reduce the amount of any Losses hereunder; provided that actual recovery of any insurance shall not be a condition to the Indemnifying Party’s obligation to make indemnification payments to the Indemnified Party in accordance with the terms of this Agreement. If the Indemnifying Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for Loss, after an indemnification payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall promptly reimburse the Indemnifying Party for such indemnification payment up to the amount so received or realized (on an after-tax basis) by the Indemnified Party. No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including damages for lost profits or opportunity costs or damages based upon a multiple of earnings or other financial measure, except for those of the foregoing paid measure (other than any such damages payable to third parties in an otherwise indemnifiable matterparties).

Mitigation; Additional Indemnification Provisions. Each Indemnified Party shall use commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article VIIIX. For purposes of this Agreement, and such Indemnified Party Losses shall be entitled to recover decreased by any actually realized Tax Benefit resulting from the Indemnifying Party any costs payment or expenses incurred accrual of such Losses; provided, however, that Tax Benefits shall only be taken into account for such purpose to mitigate such claim or liabilitythe extent that they are actually realized within three (3) years of the Closing Date. For purposes of this Agreement, Losses shall be calculated after giving effect to any amounts recovered from third parties, including amounts recovered under insurance policies with respect to such Losses, net of any Tax Benefit actually realized (either by cash refund or actual reduction of Taxes otherwise payable) and net of any Tax Detriment actually realized (either by a reduction in cash refund or increase in Taxes otherwise payable) by the Indemnified Party or its Affiliates during or prior costs to the Tax period in which the indemnification payment is made arising in connection with the accrual, incurrence or payment of any recover such Losses. The Indemnified Party shall use commercially reasonable efforts (exercising its reasonable discretion in relation to the availability of such Tax Benefit and ability not to suffer such Tax Detriment) to claim such Tax Benefit and not suffer such Tax Detrimentamounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and expenses from insurers of such Indemnified Party under applicable insurance policies so as to reduce the amount of any Losses hereunder; provided provided, that actual recovery of any insurance shall not be a condition to the Indemnifying Party’s obligation to make indemnification payments to the Indemnified Party in accordance with the terms of this Agreement. If the Indemnifying Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for a Loss, after an indemnification payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall promptly reimburse the Indemnifying Party for such indemnification payment up to the amount so received or realized (on an after-tax basis) by the Indemnified Party. No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including damages for lost profits or opportunity costs or (other than any such damages based upon a multiple of earnings or other financial measure, except for those of the foregoing paid payable to third parties or in an otherwise indemnifiable matterthe event of fraud, willful misconduct, or Newpark’s breach of Section 5.12(a)). The Indemnifying Party shall not be liable under Section 10.2 for any Loss relating to any matter to the extent that the amount of such Loss is reflected in the calculation of the Closing Date Net Working Capital.

Mitigation; Additional Indemnification Provisions. Each Indemnified Party shall use commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article VIIIX. For purposes of this Agreement, and such Indemnified Party Losses shall be entitled to recover decreased by any actually realized Tax Benefit resulting from the Indemnifying Party any costs payment or expenses incurred accrual of such Losses; provided, however, that Tax Benefits shall only be taken into account for such purpose to mitigate such claim or liabilitythe extent that they are actually realized within three (3) years of the Closing Date. For purposes of this Agreement, Losses shall be calculated after giving effect to any amounts recovered from third parties, including amounts recovered under insurance policies with respect to such Losses, net of any Tax Benefit actually realized (either by cash refund or actual reduction of Taxes otherwise payable) and net of any Tax Detriment actually realized (either by a reduction in cash refund or increase in Taxes otherwise payable) by the Indemnified Party or its Affiliates during or prior costs to the Tax period in which the indemnification payment is made arising in connection with the accrual, incurrence or payment of any recover such Losses. The Indemnified Party shall use commercially reasonable efforts (exercising its reasonable discretion in relation to the availability of such Tax Benefit and ability not to suffer such Tax Detriment) to claim such Tax Benefit and not suffer such Tax Detrimentamounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and expenses from insurers of such Indemnified Party under applicable insurance policies so as to reduce the amount of any Losses hereunder; provided provided, that actual recovery of any insurance shall not be a condition to the Indemnifying Party’s obligation to make indemnification payments to the Indemnified Party in accordance with the terms of this Agreement. If the Indemnifying Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for a Loss, after an indemnification payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall promptly reimburse the Indemnifying Party for such indemnification payment up to the amount so received or realized (on an after-tax basis) by the Indemnified Party. No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including damages for lost profits or opportunity costs or (other than any such damages based upon a multiple of earnings or other financial measure, except for those of the foregoing paid payable to third parties or in an otherwise indemnifiable matterthe event of fraud, willful misconduct, or Newpark’s breach of Section 5.12). The Indemnifying Party shall not be liable under Section 10.2 for any Loss relating to any matter to the extent that the amount of such Loss is reflected in the calculation of the Closing Date Net Working Capital.

Mitigation; Additional Indemnification Provisions. Each Indemnified Party shall use use, and cause its Affiliates to use, commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article VIIISection 16 (including by taking commercially reasonable efforts to seek full recovery under all insurance and indemnity provisions covering any Liabilities for which it is seeking indemnification hereunder, and to the same extent as it would if such Liability were not subject to indemnification hereunder). In the event that an Indemnified Party shall be entitled fail to recover from the Indemnifying Party any costs use or expenses incurred cause its Affiliates to use such commercially reasonable efforts to mitigate such any claim or liabilityLiability, then notwithstanding anything else to the contrary contained in this Agreement, no Party shall be required to indemnify any Indemnified Party for any Liability that could reasonably be expected to have been avoided if the Indemnified Party had made such efforts. For purposes of this Agreement, Losses Liabilities shall be calculated after giving effect to any related tax benefit and amounts recovered from third parties, including amounts recovered under insurance policies with respect to such Liabilities, net of any Tax Benefit actually realized (either by cash refund or actual reduction of Taxes otherwise payable) and net of any Tax Detriment actually realized (either by a reduction in cash refund or increase in Taxes otherwise payable) by the Indemnified Party or its Affiliates during or prior costs to the Tax period in which the indemnification payment is made arising in connection with the accrual, incurrence or payment of any recover such Losses. The Indemnified Party shall use commercially reasonable efforts (exercising its reasonable discretion in relation to the availability of such Tax Benefit and ability not to suffer such Tax Detriment) to claim such Tax Benefit and not suffer such Tax Detrimentamounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort use commercially reasonable efforts to recover seek full recovery under all lossesinsurance and indemnity provisions covering any Liabilities for which it is seeking indemnification hereunder, costs, damages and expenses from insurers of to the same extent as it would if such Indemnified Party under applicable insurance policies so as Liability were not subject to reduce the amount indemnification hereunder. For purposes of any Losses hereunder; provided that actual recovery of any insurance shall not be a condition to the Indemnifying Party’s indemnification or similar obligation to make indemnification payments to the Indemnified Party in accordance with the terms of under this Agreement. If , including in this Section 16, the Indemnifying Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for Loss, after an indemnification payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall promptly reimburse the Indemnifying Party for such indemnification payment up to the amount so received or realized (on an after-tax basis) by the Indemnified Party. No Indemnified Party willindemnified party will not, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including damages for actual or potential lost profits profits, diminution in value or opportunity costs or measures of damages based upon on a multiple multiple; provided, for the avoidance of earnings or other financial measuredoubt, except for those that any damages recovered by a third party against an indemnified party entitled to indemnification shall be included in such Indemnified Party’s Liabilities, regardless of the foregoing paid to nature of the damages recovered by such third parties in an otherwise indemnifiable matterparty.

Mitigation; Additional Indemnification Provisions. Each Indemnified Party shall use commercially reasonable best efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article VIII, and such Indemnified Party shall be entitled to recover from the Indemnifying Party any costs or expenses incurred to mitigate such claim or liability. X. For purposes of this Agreement, Losses shall be net decreased by any actually realized Tax Benefit resulting from the payment or accrual of such Losses and shall be increased by any actually realized Tax Detriment resulting from the inclusion in income of any indemnification payment pursuant to this Article X in respect of such Losses (or of any payment pursuant to this Section 10.6) (in each case calculated on a with and without basis); provided, however, that Tax Benefit Benefits and Tax Detriments shall only be taken into account for such purpose to the extent that they are actually realized with respect to a taxable period (either by cash refund or actual reduction the “Relevant Periods”) ending within four and a half (4.5) years after the end of Taxes otherwise payable) and net of any Tax Detriment actually realized (either by a reduction in cash refund or increase in Taxes otherwise payable) by the Indemnified Party or its Affiliates during or prior to the Tax taxable period in which the relevant indemnification payment is made arising in connection with paid or accrued; provided, further, that the accrual, incurrence amount of any increase or payment decrease hereunder shall be adjusted (but without regard to events occurring after the Relevant Periods) to reflect any subsequent adjustments of any such LossesTax Benefit or Tax Detriment and payments shall be made between the parties to this Agreement as necessary to reflect such adjustments. The Indemnified Party shall use commercially reasonable efforts (exercising its reasonable discretion in relation to the availability of such Tax Benefit and ability not to suffer such Tax Detriment) to claim such Tax Benefit and not suffer such Tax Detriment. For purposes of this Agreement, Losses shall be calculated after giving effect to any amounts recovered from third parties, including amounts recovered under insurance policies with respect to such Losses, net of any costs to recover such amounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and expenses from insurers of such Indemnified Party under applicable insurance policies so as to reduce the amount of any Losses hereunder; provided that actual recovery of any insurance shall not be a condition to the Indemnifying Party’s obligation to make indemnification payments to the Indemnified Party in accordance with the terms of this Agreement. If the Indemnifying Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for Loss, after an indemnification payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall promptly reimburse the Indemnifying Party for such indemnification payment up to the amount so received or realized (on an after-tax basis) by the Indemnified Party. No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including damages for lost profits or opportunity costs or (other any such damages based upon a multiple of earnings or other financial measure, except for those of the foregoing paid payable to third parties parties). The Indemnifying Party shall not be liable under Section 10.2 for any Loss relating to any matter to the extent that the amount of such Loss is reflected in an otherwise indemnifiable matterthe calculation of Final Closing Working Capital or Final Closing Indebtedness.