Common use of Calculation and Mitigation of Losses Clause in Contracts

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.

Calculation and Mitigation of Losses. (a) The Without limiting Section 8.8, and excluding any claim of liquidated damages related to a breach following the Closing pursuant to Section 10.21, the amount of any Losses for which indemnification is provided under this Article X VIII 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 paidpaid or otherwise applied. 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 that the Indemnified Parties actually receive any recovery, the amount of such recovery will be applied first, to the Indemnified Parties in an amount equal to 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 or otherwise applied, second, to refund any payments made by the Indemnifying Parties in respect of indemnification claims pursuant to this Article X VIII 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)any, and secondthird, any excess to the Indemnified Parties. If a Buyer an Indemnified Party fails to pursue recoveries under any “occurrence” based occurrence”-based insurance policies or other collateral sources, then Seller the Indemnifying Party 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; provided, that the Indemnified Party shall be under no obligation to assist the Indemnifying Party in respect of such right of subrogation over and above the “commercially reasonable efforts” standard set forth above. Buyer, Buyer Parent and the Company will reasonably cooperate, and cause its their respective Representatives and Affiliates to reasonably cooperate, with Seller to pursue any such subrogation claim.

Calculation and Mitigation of Losses. (a) 6.7.1 The amount of any Losses for which indemnification is provided under this Article X 6 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 sourceslitigation), 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 6 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 Sellers 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 (including, after the Closing, the Company) to reasonably cooperate, with Seller Sellers to pursue any such subrogation claim.

Calculation and Mitigation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article X will VIII shall 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; provided, however, that for avoidance of doubt, items (i) and (ii) shall not be taken into account with respect to the R&W Insurance Policy. The Indemnified Parties will shall use their commercially reasonable efforts to pursue such insurance policies or collateral sources (which efforts will shall 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 sourceslitigation), and in the event the Indemnified Parties actually receive any recovery, the amount of such recovery will shall be applied first, to refund any payments made by the Indemnifying Parties in respect of indemnification claims pursuant to this Article X VIII which would not have been so paid had such recovery been obtained prior to such payment, if any payment (provided that if such payments were made out of the Indemnity Escrow Account and the Indemnity Escrow Account is still in effect, such amounts will shall be returned to the Indemnity Escrow Account), and second, any excess to the Indemnified Parties. If a Buyer Indemnified Party Parent Indemnitee fails to pursue recoveries under any “occurrence” based insurance policies or other collateral sources, then Seller will the Participating Securityholders shall 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 Parent shall reasonably cooperate, and cause its Representatives and Affiliates (including, after the Closing, the successors to the Lime Entities) to reasonably cooperate, with Seller the Participating Securityholders to pursue any such subrogation claim. In the event of any conflict between the provisions of Section 7.12 and this Section 8.8(a), the provision of Section 7.12 shall control.

Calculation and Mitigation of Losses. (a) 7.7.1 The amount of any Losses for which indemnification is provided under this Article X 7 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 7 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 Indemnification Escrow Account and the Indemnification Escrow Account is still in effect, such amounts will be returned to the Indemnification 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 Sellers 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 (including, after the Closing, the Acquired Companies) to reasonably cooperate, with Seller Sellers to pursue any such subrogation claim.

Calculation and Mitigation of Losses. (a) The amount of any Losses Loss for which indemnification is provided under this Article X will XI shall be net of any amounts recovered by such Indemnified Party under insurance policies or other collateral sources with respect to such Losses Loss; provided that the amounts recovered by an Indemnified Party shall be determined net of any increase in excess of premiums payable by the sum of (i) reasonable, out-of-pocket costs and expenses relating Company Group attributable to collection the event giving rise to such claim for indemnification. In the event any amounts recovered under such insurance policies or other collateral sourcessources are not received before any claim for indemnification is paid pursuant to this Article XI, and (ii) then the deductible associated therewith to the extent actually paid. The Indemnified Parties will use their commercially reasonable efforts to Company Group shall 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)with reasonable diligence, and in the event the Indemnified Parties actually receive it receives any recoveryrecovery under any insurance policy or from any collateral source with respect to such Loss, apply the amount of such recovery will 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 Indemnifying Parties in respect of indemnification claims pursuant to this Article X Sellers 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 secondthird, any excess to the Indemnified PartiesCompany Group. If 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 Buyer Indemnified Party fails Loss that caused indemnification payments to pursue recoveries under any “occurrence” based insurance policies 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 other collateral sourcesportion thereof) with respect to such payment is not Table of Contents allowed in such Tax year applying the limitations of the foregoing provision, then Seller will have such item of deduction (or any portion thereof) shall be deemed used in the right of subrogation to pursue first succeeding tax year following such insurance policies or other collateral sources (to year that such item is allowed applying 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 ordering rules 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 foregoing provision for such subrogation claimother Tax years.