Calculation of Losses; Mitigation. (a) The amount of any Loss (including a Tax) for which indemnification is provided under this Article VIII shall be (i) net of any amounts recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (including a Tax) (after taking into account costs of collection and any increase in premium) and (ii) reduced or offset by any Tax deductions, credits or similar attributes arising as a result of such Loss actually realized by the Group Companies or its Affiliates in the year in which the loss occurred (calculated on a “with or without” basis). The amount of the Loss (including a Tax) arising out of any item included as a liability in calculating Closing Working Capital or Closing Indebtedness, if any, shall be calculated net of the amount so included.
Calculation of Losses; Mitigation. (a) The amount of any Loss (or Tax) for which indemnification is provided under this Article VI shall be net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (or Tax) (net of the reasonable, out-of-pocket costs of investigation and collection) and shall be reduced to take account of any Tax benefit actually realized as a result of the incurrence or payment of the applicable Loss (or Tax) as a reduction in cash Taxes paid by the indemnified party (or, in the case of Purchaser, any Group Company) in the taxable year in which the applicable Loss (or Tax) is incurred and increased to take account of any Tax cost incurred by the indemnified party as a result of the receipt of any indemnification payment hereunder, determined on a with and without basis. The amount of the Loss (or Tax) arising out of any item included as a liability in calculating Closing Working Capital, if any, shall be calculated net of the amount so included. To the extent that any amount is recovered by any indemnified party under an insurance policy or any other source of indemnification is realized after the date that an indemnity payment is made hereunder, then such indemnified party shall pay to the indemnifying party such amounts (net of associated reasonable out-of-pocket costs) no later than five days after such proceeds are received (but not to exceed the amount of the indemnity payment).
Calculation of Losses; Mitigation. For purposes of determining the amount of any Losses subject to indemnification under this Article IX, the amount of such Losses will be determined net of (a) all related reserves properly accrued and directly related to the specific matter subject of indemnification on the Balance Sheet or reflected in the Final Working Capital Amount and (b) the difference of (i) any amounts recovered by the Indemnified Party under insurance policies with respect to such Losses minus (ii) the total of the cost of such recovery and the reasonably expected increased cost of premiums for the insurance policy under which the Indemnified Party recovered.
Calculation of Losses; Mitigation. An Indemnified Party shall not be entitled to double recovery for any Losses. In calculating amounts payable to an Indemnified Party hereunder, the amount of any indemnified Loss shall not be duplicative of any other Loss for which an indemnification claim has been made. If an Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 9.2 or Section 9.3 and the Indemnified Party could have recovered all or a part of such Losses from a Third Party (excluding any insurance company of such Party) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against such Third Party as are necessary to permit the Indemnifying Party to recover from the Third Party the amount of such payment; provided that to the extent any insurance recovery is actually received by the Indemnified Party or its Affiliates from any Third Party with respect to such Losses, then a refund equal to the aggregate amount of recovery net of the Indemnified Party’s reasonable out-of-pocket expenses relating to such recovery shall be made promptly to the Indemnifying Party; provided that any increase in the Indemnified Party’s insurance premium resulting from the making of such claim shall also be taken into account in the calculation of such refund.
Calculation of Losses; Mitigation. (a) The amount of any Loss for which indemnification is provided under this Article VIII or Section 5.07(a) shall be (i) net of any amounts recovered by the indemnified party under insurance policies or otherwise with respect to such Loss (after taking into account costs of collection and any increase in premium) and (ii) reduced or offset by any Tax deductions, credits or similar attributes actually realized by any Purchaser Indemnitee as a result of such Loss in the taxable year in which such Loss occurred. The amount of the Loss arising out of any item included as a liability in calculating Closing Working Capital, Closing Indebtedness, if any, shall be calculated net of the amount so included.
Calculation of Losses; Mitigation. (a) The amount of any Loss for which indemnification is provided under this Article XI shall be net of (x) any amounts actually received by the Indemnified Party under insurance policies with respect to such Loss and (y) the amount of any Tax benefit actually realized by the Indemnified Party as a result of incurring the Loss at issue in the taxable year in which such Loss is incurred or paid. (b) No Indemnified Party shall be entitled to indemnification pursuant to this Article XI with respect to any Loss to the extent that such Loss was reflected in the calculation of the Final Purchase Price as finally determined pursuant to Section 1.04. (c) No Indemnified Party shall be entitled to recover for the same Loss more than once under this Article XI or otherwise under this Agreement. Notwithstanding anything to the contrary herein or provided under applicable Law, Losses shall not include Losses that are in the nature of (i) diminution in value, exemplary or punitive damages, regardless of the form of action through which they are sought, or (ii) damages calculated on multiplies of earnings or other similar metric approaches, in each case, except to the extent any such Losses are awarded and paid by an Indemnified Party with respect to a Third Party Claim.
Calculation of Losses; Mitigation. (a) The amount of any Loss (including a Tax) for which indemnification is provided under this Article VIII shall be net of any amounts recovered or recoverable by the indemnified party under insurance policies with respect to such Loss. The amount of the Loss (including a Tax) arising out of any item included as a liability in calculating Closing Working Capital, if any, shall be calculated net of the amount so included.
Calculation of Losses; Mitigation. (a) The amount of any Loss for which indemnification is provided under this Article VI shall be net of any amounts recovered or recoverable by the indemnified party under insurance policies or otherwise with respect to such Loss 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 realized by the indemnified party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax benefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. The amount of the Loss arising out of any item included as a liability in calculating Closing Working Capital, if any, shall be calculated net of the amount so included.
Calculation of Losses; Mitigation. In calculating amounts payable to an Indemnified Party, the amount of the indemnified Losses shall not be duplicative of any other Loss for which an indemnification claim has been made and shall be computed net of (i) payments actually received by the Indemnified Party under any insurance policy with respect to such Losses (which such Indemnified Party shall use commercially reasonable efforts to recover promptly and after giving effect to any expenditures to obtain such payments and any applicable deductible or retention), (ii) any prior or subsequent amounts actually recovered by the Indemnified Party from any Person with respect to such Losses (which such Indemnified Party shall use commercially reasonable efforts to recover promptly) and (iii) any Tax benefit actually realized by the Indemnified Party with respect to such Losses (which such Indemnified Party shall use commercially reasonable efforts to recover promptly). Each Indemnified Party shall act in good faith and shall use its commercially reasonable efforts to mitigate any of its Losses; provided, that in no event shall an Indemnified Party be required to incur costs in connection therewith in excess of the minimum amount it deems, in good faith, necessary to remedy the breach which gives rise to the Losses.
Calculation of Losses; Mitigation. Notwithstanding anything to the contrary in this Agreement, the amount of any Losses suffered or incurred by any Indemnified Person shall be calculated after giving effect to any insurance proceeds actually received by the Indemnified Person with respect to such Losses from third party insurers, net of (a) all out-of-pocket costs and expenses relating to collection of such amounts from such insurers, (b) any deductible associated therewith, and (c) any increase in premiums resulting therefrom. Each Indemnified Person shall use its commercially reasonable efforts to recover under insurance policies or similar agreements for any Losses. In addition, notwithstanding anything to the contrary in this Agreement, (i) in no event shall any Indemnifying Person be liable to any Indemnified Person for any punitive, incidental, special (other than consequential) or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach of alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple, except in the case of such Losses awarded to a third party arising out of Third Party Claims, and (ii) each Indemnified Person shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto.
