Calculation and Mitigation of Losses Sample Clauses

Calculation and Mitigation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article X will be net of any amounts recovered by such Indemnified Party under insurance policies or other collateral sources with respect to such Losses in excess of the sum of (i) reasonable, out-of-pocket costs and expenses relating to collection under such policies or other collateral sources, and (ii) the deductible associated therewith to the extent actually paid. The Indemnified Parties will use their commercially reasonable efforts to pursue such insurance policies or collateral sources (which efforts will not require the initiation of litigation or pursuit (or continued pursuit) to the extent such claim is reasonably determined by the Indemnified Parties to not be covered and payable under or by such insurance policies or collateral sources), and in the event the Indemnified Parties actually receive any recovery, the amount of such recovery will be applied first, to refund any payments made by the Indemnifying Parties in respect of indemnification claims pursuant to this Article X which would not have been so paid had such recovery been obtained prior to such payment, if any (provided that if such payments were made out of the Escrow Account and the Escrow Account is still in effect, such amounts will be returned to the Escrow Account), and second, any excess to the Indemnified Parties. If a Buyer Indemnified Party fails to pursue recoveries under any “occurrence” based insurance policies or other collateral sources, then Seller will have the right of subrogation to pursue such insurance policies or other collateral sources (to the extent consistent with the terms of such policies) and may take any reasonable actions necessary to pursue such rights of subrogation in their name or the name of the party from whom subrogation is obtained. Buyer will reasonably cooperate, and cause its Representatives and Affiliates to reasonably cooperate, with Seller to pursue any such subrogation claim.
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Calculation and Mitigation of Losses. The amount of any Loss for which indemnification is provided under this Article VIII shall be net of any amounts available to such Indemnified Person under insurance policies or other collateral sources with respect to such Loss, shall be reduced to take account of any net Tax benefit actually realized by the Indemnified Person arising from the incurrence or payment of any such Loss and shall be increased to take into account any net Tax detriment actually incurred by the Indemnified Person as a result of the indemnification payment. Each Indemnified Person shall use commercially reasonable efforts to seek recovery under insurance policies or other collateral sources with respect to such Loss. In the event any amounts recovered under insurance policies or other collateral sources are not received before any claim for indemnification is paid pursuant to this Article VIII, and thereafter if the Surviving Company receives any recovery, the amount of such recovery shall be applied first, to reimburse the Surviving Company for its out-of-pocket expenses (including reasonable attorney’s fees and expenses) expended in pursuing such recovery, second, to refund any payments made by the Indemnifying Party which would not have been so paid had such recovery been obtained prior to such payment, and third, any excess to the
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Calculation and Mitigation of Losses. In calculating amounts payable to an Indemnified Party, the amount of the Purchaser Losses or Shareholder Losses, as the case may be, (for purposes of this Section 11.5(b) individually a "Loss" and collectively "Losses" as the context requires) (i) shall not be duplicative of any other Loss for which an indemnification claim has been made; (ii) shall be computed net of any amounts actually recovered by such Indemnified Party under any insurance policy with respect to such Loss, after adjusting for any premium increases relating to such Loss; (iii) shall be reduced to take account of any net Tax benefit realized by such Indemnified Party arising from the incurrence or payment of any indemnity payments hereunder; and (iv) shall be reduced by any reversal of such Loss in a subsequent period except to the extent that the delay in recovery or reversal of such Loss creates an interest expense to the Indemnified Party. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit after the incurrence or payment of any indemnified Loss. Each Indemnified Party shall be obligated to use its commercially reasonable efforts to mitigate to the fullest extent practicable the amount of any Loss for which it is entitled to seek indemnification hereunder, and the costs of all such litigation efforts shall constitute Losses for purposes of the provisions set forth in this Article XI. (c)
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Calculation and Mitigation of Losses. 7.7.1 The amount of Losses subject to indemnification pursuant to this Article 7 shall be reduced by any insurance proceeds received by the applicable Indemnified Party with respect to such Losses (net of any deductible, co-payment or increases in premium and all out of pocket costs related to such recovery) from any insurance carrier pursuant to any insurance coverage in place as of the date of this Agreement. If any insurance proceeds are subsequently recovered by the Indemnified Party from an insurance carrier after payment has been made by the Indemnifying Party to the Indemnified Party in accordance with this Article 7 with respect to the Losses to which such insurance recoveries relate, then the Indemnified Party shall promptly remit to the Indemnifying Party such insurance recoveries (net of any deductible, co-payment, or increases in premium and all out of pocket costs related to such recovery); provided that, in no event shall the Indemnified Party have any obligation hereunder (a) to remit to the Indemnifying Party any portion of such insurance recoveries in excess of the indemnification payment or payments actually received from the Indemnifying Party with respect to such Losses or (b) to make any insurance claim or to pursue any recovery from any insurance carrier or third party with respect thereto (other than, in connection with recovery pursuant to Section 7.1.7, to use commercially reasonable efforts to seek to pursue claims under an applicable Listed Policy or Limited Warranty that existed as of the Closing and remains in effect).
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Calculation and Mitigation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article XI shall be net of any amounts recovered by such Indemnified Party under insurance policies with respect to such Loss; provided that the amounts recovered by an Indemnified Party shall be determined net of any increase in premiums payable by the Company Group attributable to the event giving rise to such claim for indemnification. In the event any amounts recovered under insurance policies or collateral sources are not received before any claim for indemnification is paid pursuant to this Article XI, then the Company Group shall pursue such insurance policies or collateral sources with reasonable diligence, and in the event it receives any recovery under any insurance policy or from any collateral source with respect to such Loss, apply the amount of such recovery shall be applied first, to reimburse the Company Group for its out-of-pocket expenses (including reasonable attorney’s fees and expenses) expended in pursuing such recovery, second, to refund any payments made by the Sellers which would not have been so paid had such recovery been obtained prior to such payment, and third, any excess to the Company Group. The Company shall pay to Sellers’ Representative (for the benefit of the Sellers in accordance with their respective Ownership Percentages) the amount of any actual reduction in Taxes that would be payable but for a Loss that caused indemnification payments to be made hereunder. In calculating the foregoing payment, the Company shall assume that all items of deduction other than the items for which payment is to be made hereunder shall first be used to determine the Tax liability of the Company for the Tax year in which such Loss arises, provided that, if the item of deduction (or portion thereof) with respect to such payment is not allowed in such Tax year applying the limitations of the foregoing provision, then such item of deduction (or any portion thereof) shall be deemed used in the first succeeding tax year following such year that such item is allowed applying the ordering rules of the foregoing provision for such other Tax years.
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Calculation and Mitigation of Losses. The amount of any Loss for which indemnification is provided under this Article X shall be net of any amounts recovered by the indemnified party under insurance policies with third parties (I.E., actual insurance policies and not self insurance or retention programs) with respect to such Loss (subject to offset for any increase in premiums or other costs attributable to such Losses or other expenses incurred in connection with the collection of such amounts) and shall be (a) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (b) reduced to take account of any net Tax benefit actually realized in cash by the indemnified party that would not have been received but for such Loss. The Buyers agree to use commercially reasonable efforts to seek recovery for any Losses for which indemnification is provided under this Article X that are covered by insurance policies with third parties or indemnification agreements with third parties (other than the Sellers); provided that the indemnified party shall not be obligated to commence legal proceedings against its insurers or other third parties. Each Party shall take all reasonable steps to mitigate any Losses.
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Calculation and Mitigation of Losses 
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Related to Calculation and Mitigation of Losses

  • Calculation of Losses (a) The amount of any Losses payable under Section 4.1 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies or from any other person alleged to be responsible therefor, and (ii) net tax benefit realized by the Indemnified Party arising from the incurrence or payment of any such Losses during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1; provided that (x) no such reduction for such tax benefit shall occur prior to the time at which such tax benefit is actually realized and (y) to the extent that such net tax benefit is actually realized after the date on which payment in respect of such Loss is made or deemed made under Section 4.1 (but during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1), the Indemnified Party shall reimburse the party or parties obligated to indemnify such Indemnified Party in respect of such Loss promptly following the time at which such tax benefit is actually realized. The Indemnified Party shall be deemed to have “actually realized” a net tax benefit to the extent that, and at such time as, the amount of taxes paid by the Indemnified Party or any of its Affiliates is reduced below the amount of taxes that such persons would have been required to pay but for the tax benefit. In computing the amount of any such tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any items arising from the incurrence or payment of any Losses for which indemnification is provided under Section 4.1. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

  • Mitigation of Losses The Indemnified Party shall procure that all reasonable steps are taken and all reasonable assistance is given (including the taking of any actions reasonably requested by an Indemnifying Party) to avoid or mitigate any Losses, which in the absence of mitigation might give rise to or increase a Loss in respect of any claim under this Article 8. Without limiting the foregoing, the Purchasers and the Sellers shall seek and collect any indemnification, reimbursement or other recovery of Losses that may be available under any applicable Corporate Trust Contract in accordance with Section 4.2 and the applicable provisions of the Purchase Agreement.

  • Determination of Losses All Losses subject to indemnification pursuant to this Article IX or the [***] shall be calculated net of the amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article IX, the Indemnified Party shall promptly remit to the applicable Indemnifying Party the excess of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of the Loss.

  • Allocation of Losses Section 5.04

  • Mitigation of Loss Each Indemnified Party shall take and shall procure that its Affiliates take all such reasonable steps and action as are reasonably necessary in order to mitigate any Losses (or potential losses or damages) under this Article 13. Nothing in this Agreement shall or shall be deemed to relieve any Party of any common law or other duty to mitigate any losses incurred by it.

  • Allocation of Liabilities The IMS Health Group shall assume all Liabilities with respect to awards granted to IMS Health Employees, IMS Health Retirees, Corporation Retirees and IMS Health Disabled Employees pursuant to the IMS Health Replacement Option Plan. The Corporation Group shall retain all other Liabilities with respect to awards granted pursuant to the Corporation Stock Option Plans (including, but not limited to, awards granted to Corporation Post-Distribution Employees).

  • Compensation; Allocation of Costs and Expenses In full consideration of the provision of the services of the Administrator, the Company shall reimburse the Administrator for the costs and expenses incurred by the Administrator in performing its obligations and providing personnel and facilities hereunder, it being understood and agreed that, except as otherwise provided herein or in that certain Investment Advisory Agreement, by and between the Company and the Administrator (the Administrator, in its capacity as adviser pursuant to the Investment Advisory Agreement, the “Adviser”), as amended from time to time (the “Advisory Agreement”), the Administrator shall be solely responsible for the compensation of its employees and all overhead expenses of the Administrator (including rent, office equipment and utilities). The Company, either directly or through reimbursement to the Adviser, shall bear all costs and expenses of its operation, administration and transactions not specifically assumed by the Adviser pursuant to the Advisory Agreement, including (without limitation): expenses deemed to the “organization and offering expenses” of the Company for purposes of Conduct Rule 2310(a)(12) of the Financial Industry Regulatory Authority (for purposes of this Agreement, such expenses, exclusive of commissions, the dealer manager fee, any discounts and other similar expenses paid by investors at the time of sale of the Stock of the Company, are hereinafter referred to as “Organization and Offering Costs”); corporate and organizational expenses relating to offering of shares of Common Stock, subject to limitations included in the Agreement; the cost of calculating the Company’s net asset value, including the cost of any third-party valuation services; the cost of effecting any sales and repurchases of the Common Stock and other securities; fees and expenses payable under any dealer manager agreements, if any; debt service and other costs of borrowings or other financing arrangements; costs of hedging; expenses, including travel expense, incurred by the Administrator, or members of the Investment Team, or payable to third parties, performing due diligence on prospective portfolio companies and, if necessary, enforcing the Company’s rights; escrow agent, transfer agent and custodial fees and expenses; fees and expenses associated with marketing efforts; federal and state registration fees, any stock exchange listing fees and fees payable to rating agencies; federal, state and local taxes; independent directors’ fees and expenses, including certain travel expenses; costs of preparing financial statements and maintaining books and records and filing reports or other documents with the SEC (or other regulatory bodies) and other reporting and compliance costs, including registration fees, listing fees and licenses, and the compensation of professionals responsible for the preparation of the foregoing; the costs of any reports, proxy statements or other notices to stockholders (including printing and mailing costs); the costs of any stockholder or director meetings and the compensation of personnel responsible for the preparation of the foregoing and related matters; commissions and other compensation payable to brokers or dealers; research and market data; fidelity bond, directors and officers errors and omissions liability insurance and other insurance premiums; direct costs and expenses of administration, including printing, mailing, long distance telephone and staff; fees and expenses associated with independent audits, outside legal and consulting costs; costs of winding up; costs incurred in connection with the formation or maintenance of entities or vehicles to hold the Company’s assets for tax or other purposes; extraordinary expenses (such as litigation or indemnification); and costs associated with reporting and compliance obligations under the Advisers Act and applicable federal and state securities laws. Notwithstanding anything to the contrary contained herein, the Company will bear its allocable portion of the costs of the compensation, benefits and related administrative expenses (including travel expenses) of the Company’s officers who provide operational and administrative services hereunder, their respective staffs and other professionals who provide services to the Company (including, in each case, employees of the Adviser or an affiliate) who assist with the preparation, coordination, and administration of the foregoing or provide other “back office” or “middle office” financial or operational services to the Company. Notwithstanding anything to the contrary contained herein, the Company shall reimburse the Adviser (or its affiliates) for an allocable portion of the compensation paid by the Adviser (or its affiliates) to such individuals (based on a percentage of time such individuals devote, on an estimated basis, to the business affairs of the Company and in acting on behalf of the Company). For the avoidance of doubt, the Adviser shall be solely responsible for any placement or “finder’s” fees payable to placement agents engaged by the Company or its affiliates in connection with the offering of securities by the Company.

  • Allocation of Costs and Expenses The Company shall bear all costs and expenses for the administration of its business and shall reimburse the Advisor for any such costs and expenses that have been paid by the Advisor, or by any affiliate thereof, on behalf of the Company on the terms and conditions set forth in Section 6. These costs and expenses shall include, but not be limited to:

  • Procedure for Determination of Entitlement to Indemnification (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.

  • Standard of Care, Limitation of Liability and Indemnification (a) The Sub-Adviser shall exercise its best judgment in rendering the services under this Agreement. The Sub-Adviser shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Trust, the Adviser or the Fund, or affiliated persons of the Adviser or the Fund (collectively, the "Adviser Indemnitees") in connection with the matters to which this Agreement relates except a loss resulting from the Sub-Adviser's willful misfeasance, bad faith or gross negligence in the performance of its obligations and duties, or by reason of its reckless disregard of its obligations and duties, under this Agreement; provided, however, that nothing herein shall be deemed to protect or purport to protect the Sub-Adviser against any liability to the Adviser Indemnitees for, and the Sub-Adviser shall indemnify and hold harmless the Adviser Indemnitees from, any and all claims, losses, expenses, obligations and liabilities (including reasonable attorney's fees) to which any of the Adviser Indemnitees may become subject arising out of or resulting from (i) the Sub-Adviser causing the Fund to be in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund's current Registration Statement or the most current written guidelines, policies or instruction provided in writing by the Board or the Adviser, (ii) the Sub-Adviser causing the Fund to fail to satisfy the requirements set forth in Section 2(i) hereof, (iii) any untrue statement of a material fact contained in the Registration Statement, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Sub-Adviser or the Portfolio managed by the Sub-Adviser or the omission to state therein a material fact known to the Sub-Adviser that was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon information furnished to the Adviser or the Trust by the Sub-Adviser for use therein, or (iv) a breach of this Agreement by the Sub-Adviser. In addition, the Sub-Adviser shall indemnify and hold harmless the Trust and the Fund from any and all claims, losses, expenses, obligations and liabilities (including reasonable attorney's fees) to which either the Trust or the Fund may become subject directly arising out of or resulting from a breach of fiduciary duty by the Sub-Adviser under Section 36(b) of the 1940 Act with respect to the receipt of compensation for its services under this Agreement. Notwithstanding the foregoing, nothing contained in this Agreement shall constitute a waiver or limitation of rights that the Trust or the Fund may have under federal or state securities laws.

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