Common use of Net Recovery Clause in Contracts

Net Recovery. The amount of any Loss shall be net of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities, reimbursement arrangements, or contracts (including with respect to any breaches thereof) pursuant to which or under which such Person or such Person’s Affiliates is a party or has rights (“Alternative Arrangements”) with respect to such Loss (in each case, net of any costs and expenses incurred in connection with the collection of any such amounts, and net of any increase in insurance premiums as a result of such Loss). Additionally, the amount of any Loss claimed by any Indemnified Party hereunder shall be reduced to the extent of any Tax savings or benefits actually realized (determined on a “with and without” basis) by any Indemnified Party or its Affiliates that is attributable to any deduction, loss, credit or other Tax benefit resulting from or arising out of such Loss in the year the indemnity payment is made or in any prior year. If the amount to be netted pursuant to this section from any payment actually recovered pursuant to this section is determined only after such payment, the Indemnified Party shall repay the Indemnifying Party (or the Paying Agent in trust for the Sellers as disbursing agent in the case of amounts actually recovered by Buyer or the Company or any of their Affiliates for the benefit of and distribution to the Sellers) promptly (but in any event within five (5) Business Days after such determination) any amount that the Indemnifying Party would not have had to pay or that would have been deducted from the relevant payment to the Sellers or Optionees. In the event of any breach giving rise to an indemnification obligation under this Article XI or the right to make a claim against any deferred payments, the Indemnified Party shall use, and shall cause its respective Affiliates to use, commercially reasonable efforts to mitigate the Losses of the related breach for which indemnification may be sought hereunder upon becoming aware of any event which would reasonably be expected to, or does give rise thereto (including taking reasonable steps to, the extent consistent with sound business judgment, incur costs only to the extent necessary to remedy the breach which gives rise to the Loss).

Net Recovery. The amount of any Indemnity Loss for which indemnification is provided under Section 8.01 or Section 8.02 shall be net of any amounts actually recovered recoverable by Purchaser Indemnified Parties or Seller Indemnified Parties, as the Indemnified Party case may be, under insurance policies, indemnities, reimbursement arrangements, or contracts (including with respect to any breaches thereof) pursuant to which or under which such Person or such Person’s Affiliates is a party or has rights (“Alternative Arrangements”) policies with respect to such Loss (in each case, net Indemnity Loss. Each of Purchaser and Seller shall use its Best Efforts to make any costs and expenses incurred in connection with the collection of all insurance claims relating to any such amounts, and net of any increase in insurance premiums as a result of such Loss)claim for which it is seeking indemnification under this Article 8. Additionally, the The amount of any Indemnity Loss claimed by any Purchaser Indemnified Party Parties or Seller Indemnified Parties, as the case may be, hereunder shall be reduced to the extent of any Tax savings or benefits actually realized (determined on a “with and without” basis) realizable by any Purchaser Indemnified Party Parties or its Affiliates Seller Indemnified Parties, as the case may be, that is attributable to any deduction, loss, credit or other Tax benefit resulting from or arising out of such Indemnity Loss. The amount of any Indemnity Loss in the year the indemnity payment is made or in any prior year. If the amount to be netted pursuant to this section from any payment actually recovered pursuant to this section is determined only after such payment, the claimed by a Purchaser Indemnified Party shall repay the Indemnifying Party (or the Paying Agent in trust for the Sellers Seller Indemnified Party, as disbursing agent in the case of amounts actually recovered by Buyer or the Company or any of their Affiliates for the benefit of and distribution to the Sellers) promptly (but in any event within five (5) Business Days after such determination) any amount that the Indemnifying Party would not have had to pay or that would have been deducted from the relevant payment to the Sellers or Optionees. In the event of any breach giving rise to an indemnification obligation under this Article XI or the right to make a claim against any deferred paymentsmay be, the Indemnified Party hereunder shall use, and shall cause its respective Affiliates to use, commercially reasonable efforts to mitigate the Losses of the related breach for which indemnification may be sought hereunder upon becoming aware of any event which would reasonably be expected to, or does give rise thereto (including taking reasonable steps to, the extent consistent with sound business judgment, incur costs only reduced to the extent necessary to remedy Purchaser Indemnified Parties or Seller Indemnified Parties, as the breach which gives rise case may be, recover any amounts from third parties with respect to the matters relating to such Indemnity Loss). Notwithstanding anything to the contrary contained in this Agreement, Seller shall have no liability under this Agreement with respect to any matter to the extent the expense, loss or liability comprising the Indemnity Loss (or part thereof) with respect to such matter has been taken into account in the determination of the Net Portfolio Value Adjustment.

Net Recovery. The amount of any Loss shall be net of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities, reimbursement arrangements, or contracts (including with respect to any breaches thereof) pursuant to which or under which such Person or such Person’s Affiliates is a party or has rights (“Alternative Arrangements”) with respect to such Loss (in each case, net of any costs and expenses incurred in connection with the collection of any such amounts, and net of any increase in insurance premiums as a result of such Loss). Additionally, the The amount of any Loss claimed by any Indemnified Party hereunder shall be reduced to the extent of any Tax savings or benefits actually realized (determined on a “with and without” basis) by any Indemnified Party or its Affiliates that (A) is attributable to any deduction, loss, credit or other Tax benefit resulting from or arising out of such Loss and (B) results in an actual reduction in cash Tax liability (whether as a result of a refund, credit or offset) in the year the indemnity payment is made or in of such Loss, any prior year. If the amount to be netted pursuant to this section from any payment actually recovered pursuant to this section is determined only after year preceding such payment, the Indemnified Party shall repay the Indemnifying Party (Loss or the Paying Agent in trust subsequent year from the incurrence or payment for the Sellers as disbursing agent in the case of amounts actually recovered by Buyer or the Company or any of their Affiliates for the benefit of and distribution such Losses, except to the Sellersextent such reduction is addressed by Section 9.9(g) promptly (but in any event within five (5) Business Days after such determination) any amount that the Indemnifying Party would not have had to pay or that would have been deducted from the relevant payment to the Sellers or OptioneesSection 9.9(h)). In the event of any breach giving rise to an indemnification obligation under this Article XI Section 9.1 or the right to make a claim against any deferred paymentsthe then-available portion of the Escrow Amount, the Indemnified Party shall usetake, and shall cause its respective Affiliates to usetake, commercially reasonable efforts measures to mitigate the Losses consequences of the related breach for which indemnification may be sought hereunder upon becoming aware of any event which would reasonably be expected to, or does give rise thereto (including taking such commercially reasonable steps tomeasures to prevent any contingent Loss of which the Indemnified Party is aware from becoming an actual Loss). Notwithstanding anything to the contrary contained in this Agreement, the extent consistent Indemnified Party shall have no right to make any claim against any Indemnifying Party or the then-available portion of the Escrow Amount with sound business judgment, incur costs only respect to any matter to the extent necessary the expense, loss or liability comprising the Loss (or a part thereof) with respect to remedy such matter was specifically included in the breach which gives rise calculation of (i) Estimated Working Capital or Final Working Capital, (ii) Estimated Indebtedness or Final Indebtedness, (iii) Estimated Company Transaction Expenses or Final Company Transaction Expenses or (iv) Estimated Cash or Final Cash, except to the Lossextent that such Losses exceed the applicable amount(s) so included in such calculations; provided, however, that notwithstanding the foregoing, with respect to any matter that was actually taken into account in such calculations and regardless of the amount of any adjustment related thereto, no additional claim may be made with respect to such underlying matter (solely by way of example for purposes of illustration regarding the foregoing: if Purchaser and the Sellers’ Representative had a disagreement concerning how revenue was recognized under certain contracts for working capital purposes (solely for purposes of this example, the “working capital matter”) and Purchaser’s initial position was that such working capital matter should result in a payment of $800,000 to Purchaser and the Sellers’ Representative’s initial position was that such working capital matter should result in a payment of $200,000 to Purchaser, and such parties ultimately settled that such working capital matter should result in a payment of $500,000 to Purchaser, then Purchaser would be precluded from raising any further claim regarding such working capital matter (whether for the additional $300,000 from Purchaser’s initial position or otherwise) since such working capital matter was actually taken into account in the calculations).

Net Recovery. The amount of any Loss Damages shall be net of any amounts actually recovered by the Indemnified Party Persons under insurance policies, indemnities, reimbursement arrangements, or contracts (including with respect to any breaches thereof) pursuant to which or under which such Person or such Person’s Affiliates is a party or has rights (“Alternative Arrangements”) with respect to such Loss (in each case, net of any costs and expenses incurred in connection with the collection of any such amounts, and net of any increase in insurance premiums as a result of such Loss). Additionally, the amount of any Loss claimed by any Indemnified Party hereunder shall be reduced to the extent of any Tax savings or benefits actually if and when realized (determined on a “with and without” basis) by any Indemnified Party Person in the form of a refund or its Affiliates credit against current Tax due and payable by such Indemnified Person in the taxable year such Damages were incurred or the taxable year in which the indemnification payments were made that is attributable to any deduction, loss, credit credit, or other Tax benefit resulting from or arising out of such Loss Damages (less, in all cases, incremental Taxes and reasonably incurred costs and expenses of pursuing such recovery or Tax benefit and, if applicable for recoveries, the year the indemnity payment is made or in any prior yeardeductible associated therewith). If the amount to be netted pursuant to this section Section 11.7 from any payment actually recovered required pursuant to this section ARTICLE XI is determined only after such payment, the Indemnified Party Person shall repay the Indemnifying Party Person (or the Paying Agent Sellers in trust for the Sellers as disbursing agent in the case of amounts actually amount recovered by Buyer Purchaser or the Company or any of their Affiliates for the benefit of and distribution to the SellersAffiliates) promptly (but in any event within five (5) Business Days after such determination) any amount that the Indemnifying Party Person would not have had to pay or that would have pursuant to this ARTICLE XI had such determination been deducted from made at the relevant payment time of such payment. Notwithstanding anything to the Sellers or Optionees. In the event of contrary contained in this Agreement, no Purchaser Indemnified Person shall have any breach giving rise to an indemnification obligation under this Article XI or the right to make a any claim against a Seller and no Purchaser Indemnified Person will be entitled to be indemnified under this ARTICLE XI for any deferred payments, the Indemnified Party shall use, and shall cause its respective Affiliates Damages with respect to use, commercially reasonable efforts to mitigate the Losses of the related breach for which indemnification may be sought hereunder upon becoming aware of any event which would reasonably be expected to, or does give rise thereto (including taking reasonable steps to, the extent consistent with sound business judgment, incur costs only matter to the extent necessary the expense, loss or liability comprising the Damages (or a part thereof) with respect to remedy such matter was taken into account in the breach which gives rise calculation of Final Working Capital, Final Cash, Final Indebtedness or Final Transaction Expenses pursuant to Section 2.8 hereof or arises out of changes after the Loss)Closing Date in applicable Laws or any interpretations thereof.

Net Recovery. The amount of any Loss Adverse Consequences shall be net of any amounts actually recovered by the Indemnified Party and its Affiliates under insurance policies, indemnities, reimbursement arrangements, or contracts (including with respect to any breaches thereof) pursuant to which or under which such Person or such Person’s Affiliates is a party or has rights (“Alternative Arrangements”) with respect to such Loss Adverse Consequences (in each case, net of any costs or premiums incurred by the Indemnified Party or its Affiliates in connection to such recoveries). The Buyer shall, and shall cause each Indemnified Party and its Affiliates to, use vigorous efforts to recover any such amount from any such Alternative Arrangement; provided that an Indemnified Party shall not be required to (i) incur material out-of-pocket fees or expenses incurred in connection with such efforts if the collection Indemnifying Party has failed to agree to be responsible for such fees and expenses after the Indemnified Party’s request with respect thereto or (ii) instigate litigation in respect of any such amountsefforts unless the Indemnifying Party has agreed to be responsible for the reasonable costs thereof, and net provided, further, that (x) such failure to use such efforts in accordance with the foregoing shall not relieve the Indemnifying Party of any increase in insurance premiums as a result its indemnification obligations under this Article 8 except and only to the extent that the Indemnifying Party is actually prejudiced thereby, and (y) the reasonable costs of such Loss)efforts shall be indemnifiable Adverse Consequences hereunder. Additionally, the The amount of any Loss Adverse Consequences claimed by any Indemnified Party hereunder shall be reduced to the extent of any Tax savings or benefits actually realized (determined on a “with and without” basis) by any Indemnified Party or its Affiliates that is attributable to any deduction, loss, credit or other Tax benefit resulting from or arising out of such Loss Adverse Consequences (net of any reasonable costs incurred by the Indemnified Party or its Affiliates in the year the indemnity payment is made connection to such savings or in any prior yearbenefits). If the amount to be netted pursuant to this section Section 8.8 from any payment actually recovered required pursuant to this section Article 8 is determined only after such payment, the Indemnified Party shall repay the Indemnifying Party (or the Paying Agent Seller in trust for the Sellers as disbursing agent in the case of amounts actually recovered by the Buyer or the Company or any of their Affiliates for the benefit of and distribution to the Sellersits Affiliates) promptly (but in any event within five (5) Business Days after such determination) any amount that the Indemnifying Party would not have had to pay or that would have pursuant to this Article 8 had such determination been deducted from made at the relevant payment time of such payment. All indemnification payments made pursuant to this Agreement shall be treated by the Parties as adjustments to the Sellers or Optionees. In the event of any breach giving rise to an indemnification obligation under this Article XI or the right to make a claim against any deferred payments, the Indemnified Party shall use, and shall cause its respective Affiliates to use, commercially reasonable efforts to mitigate the Losses of the related breach for which indemnification may be sought hereunder upon becoming aware of any event which would reasonably be expected to, or does give rise thereto (including taking reasonable steps to, the extent consistent with sound business judgment, incur costs only to the extent necessary to remedy the breach which gives rise to the Loss)Purchase Price.

Net Recovery. The amount to which a Parent Indemnified Party or a Company Indemnified Party may become entitled in respect of any Claim under this Article 9 shall be reduced by any insurance or other third party recovery, reimbursement or benefit realized in respect of such Claim on or before the date which is twelve (12) months after the date such Claim arose, or any Tax benefit actually realized on or before the due date (including extensions thereof) for the filing of the Federal income Tax Return for the taxable year in which the payment giving rise to such benefit is made. For purposes of this Section 9.5, a Tax benefit shall be deemed to have been actually realized on the date that a Tax return claiming such benefit is filed, and the amount of such Tax benefit shall be equal to the amount by which the Taxes shown on such return are lower (computed on a "but for" basis) than they would have been had such Tax benefit item not been claimed. The amount of any Loss shall be net of any amounts actually recovered by the Indemnified Party under insurance policiessuch recovery, indemnitiesless all reasonable costs, reimbursement arrangements, or contracts (including with respect to any breaches thereof) pursuant to which or under which such Person or such Person’s Affiliates is a party or has rights (“Alternative Arrangements”) with respect to such Loss (in each case, net of any costs charges and expenses incurred in connection with by the collection of any such amounts, and net of any increase in insurance premiums as a result of such Loss). Additionally, the amount of any Loss claimed by any Indemnified Party hereunder shall be reduced to the extent of any Tax savings or benefits actually realized (determined on a “with and without” basis) by any relevant Parent Indemnified Party or its Affiliates that is attributable to any deductionCompany Indemnified Party, lossas the case may be, credit or other Tax benefit resulting in obtaining such recovery from or arising out of such Loss in the year third party, shall be repaid by the indemnity payment is made or in any prior year. If the amount to be netted pursuant to this section from any payment actually recovered pursuant to this section is determined only after such payment, the relevant Parent Indemnified Party shall repay or Company Indemnified Party, as the Indemnifying case may be, to the relevant indemnifying Party (or promptly upon the Paying Agent in trust for receipt thereof from the Sellers as disbursing agent third party. Without limiting the generality of the foregoing, in the case of amounts actually recovered a Tax 66 benefit, the amount to which a Parent Indemnified Party or a Company Indemnified Party may become entitled in respect of any Claim under this Article 9 shall initially be payable in full (without regard to the net recovery provisions of this Section 9.5), and the amount of such Tax benefit shall be repaid by Buyer the relevant Parent Indemnified Party or Company Indemnified Party, as the Company or any case may be, to the relevant indemnifying Party promptly at the time of their Affiliates the filing of the Federal income Tax Return for the benefit of and distribution to taxable year in which the Sellers) promptly (but in any event within five (5) Business Days after such determination) any amount that the Indemnifying Party would not have had to pay or that would have been deducted from the relevant payment to the Sellers or Optionees. In the event of any breach giving rise to an indemnification obligation under this Article XI or the right to make a claim against any deferred payments, the Indemnified Party shall use, and shall cause its respective Affiliates to use, commercially reasonable efforts to mitigate the Losses of the related breach for which indemnification may be sought hereunder upon becoming aware of any event which would reasonably be expected to, or does give rise thereto (including taking reasonable steps to, the extent consistent with sound business judgment, incur costs only to the extent necessary to remedy the breach which gives rise to the Loss)such benefit is made.