Common use of Mitigation; Additional Indemnification Provisions Clause in Contracts

Mitigation; Additional Indemnification Provisions. (a) Each Indemnified Party shall use, and cause its Affiliates to use, commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article X (including by taking reasonable best efforts to seek full recovery under all insurance and indemnity provisions covering any Losses for which it is seeking indemnification hereunder, to the same extent as it would if such Loss were not subject to indemnification hereunder). (b) For purposes of this Agreement, Losses shall be calculated after giving effect to amounts actually received under any insurance policy, (net of any costs to recover such amounts and increases in premiums resulting from such claim). (c) The amount of any Losses for which indemnification is provided shall be adjusted to take into account the amount of any net Tax benefit actually realized by the Indemnified Party as a result of the incurrence or payment of any such Losses in the form of a refund or reduction in Taxes otherwise payable within the tax year in which the Losses were incurred or paid, or the next two immediately succeeding tax years, in each case, calculated by comparing Taxes that would have been payable without taking into account any deduction or credit resulting from such Losses and Taxes actually payable by taking into account such deductions or credits (but only after all other items of income, gain, loss and deduction have been taken into account). If the Indemnified Party actually realizes a Tax benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, the Indemnified Party shall pay to the Indemnifying Party the amount that the indemnification payment would have been reduced by if such Tax benefit had been actually realized prior to the time such indemnification payment was made. (d) No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including actual or potential lost profits, diminution in value or measures of damages based on a multiple.

Mitigation; Additional Indemnification Provisions. (a) Each Indemnified Party shall use, and cause its Affiliates to use, use commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article X (including by taking reasonable best efforts VIII, and such Indemnified Party shall be entitled to seek full recovery under all insurance and indemnity provisions covering recover from the Indemnifying Party any Losses for which it is seeking indemnification hereunder, costs or expenses incurred to the same extent as it would if mitigate such Loss were not subject to indemnification hereunder). (b) claim or liability. For purposes of this Agreement, Losses shall be calculated after giving effect to amounts actually received under any insurance policy, (net of any costs to recover such amounts Tax Benefit actually realized (either by cash refund or actual reduction of Taxes otherwise payable) and increases in premiums resulting from such claim). (c) The amount net of any Losses for which indemnification is provided shall be adjusted to take into account the amount of any net Tax benefit Detriment actually realized (either by a reduction in cash refund or increase in Taxes otherwise payable) by the Indemnified Party as a result of 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 form terms of a refund or reduction in Taxes otherwise payable within the tax year in which the Losses were incurred or paid, or the next two immediately succeeding tax years, in each case, calculated by comparing Taxes that would have been payable without taking into account any deduction or credit resulting from such Losses and Taxes actually payable by taking into account such deductions or credits (but only after all other items of income, gain, loss and deduction have been taken into account)this Agreement. If the Indemnified Indemnifying Party actually realizes a Tax benefit receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for Loss, after an indemnification payment is by the Indemnifying Party has been made to it that was not taken into account at the time the indemnification payment was madefor such Loss, then the Indemnified Party shall pay to promptly reimburse the Indemnifying Party the amount that the indemnification payment would have been reduced by if such Tax benefit had been actually realized prior to the time for such indemnification payment was made. up to the amount so received or realized (don 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 actual damages for lost profits or potential lost profits, diminution in value opportunity costs or measures of damages based on upon a multiplemultiple 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. (a) Each Indemnified Party shall use, and cause its Affiliates to use, use commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article X XII. For purposes of this Agreement, Losses shall be net of any Tax Benefit actually realized (including either by taking reasonable best efforts to seek full recovery under all insurance and indemnity provisions covering cash refund or actual reduction of Taxes otherwise payable) net of any Losses for which it is seeking indemnification hereunder, 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 same extent as it would if Tax period in which the indemnification payment is made arising in connection with the accrual, incurrence or payment of any such Loss were 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 subject to indemnification hereunder). (bsuffer 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 actually received recovered from third parties, including amounts recovered under any insurance policypolicies with respect to such Losses, (net of any costs to recover such amounts amounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and increases in premiums resulting expenses from insurers of such claim). (c) The 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 which Loss, after an indemnification is provided payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall be adjusted promptly reimburse the Indemnifying Party for such indemnification payment up to take into account the amount of any net Tax benefit actually so received or realized by the Indemnified Party as a result of the incurrence or payment of any such Losses in the form of a refund or reduction in Taxes otherwise payable within the tax year in which the Losses were incurred or paid, or the next two immediately succeeding tax years, in each case, calculated by comparing Taxes that would have been payable without taking into account any deduction or credit resulting from such Losses and Taxes actually payable by taking into account such deductions or credits (but only after all other items of income, gain, loss and deduction have been taken into account)Party. If the Indemnified Party actually realizes a Tax benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, the Indemnified Party shall pay to the Indemnifying Party the amount that the indemnification payment would have been reduced by if such Tax benefit had been actually realized prior to the time such indemnification payment was made. (d) No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including actual damages for lost profits or potential lost profits, diminution in value opportunity costs or measures of damages based on upon a multiplemultiple of earnings or other financial measure (other than any such damages payable to third parties).

Mitigation; Additional Indemnification Provisions. (a) Each Indemnified Party shall use, and cause its Affiliates to use, commercially use reasonable best efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article X. For purposes of this Agreement, Losses shall be 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 (including by taking reasonable best efforts or of any payment pursuant to seek full recovery under all insurance this Section 10.6) (in each case calculated on a with and indemnity provisions covering any Losses without basis); provided, however, that Tax Benefits and Tax Detriments shall only be taken into account for which it is seeking indemnification hereunder, such purpose to the same extent that they are actually realized with respect to a taxable period (the “Relevant Periods”) ending within four and a half (4.5) years after the end of the taxable period in which the relevant indemnification payment is paid or accrued; provided, further, that the amount of any increase or decrease hereunder shall be adjusted (but without regard to events occurring after the Relevant Periods) to reflect any subsequent adjustments of any such Tax Benefit or Tax Detriment and payments shall be made between the parties to this Agreement as it would if necessary to reflect such Loss were 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 subject to indemnification hereunder). (bsuffer 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 actually received recovered from third parties, including amounts recovered under any insurance policypolicies with respect to such Losses, (net of any costs to recover such amounts amounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and increases in premiums resulting expenses from insurers of such claim). (c) The 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 which Loss, after an indemnification is provided payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall be adjusted promptly reimburse the Indemnifying Party for such indemnification payment up to take into account the amount of any net Tax benefit actually so received or realized by the Indemnified Party as a result of the incurrence or payment of any such Losses in the form of a refund or reduction in Taxes otherwise payable within the tax year in which the Losses were incurred or paid, or the next two immediately succeeding tax years, in each case, calculated by comparing Taxes that would have been payable without taking into account any deduction or credit resulting from such Losses and Taxes actually payable by taking into account such deductions or credits (but only after all other items of income, gain, loss and deduction have been taken into account)Party. If the Indemnified Party actually realizes a Tax benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, the Indemnified Party shall pay to the Indemnifying Party the amount that the indemnification payment would have been reduced by if such Tax benefit had been actually realized prior to the time such indemnification payment was made. (d) No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including actual damages (other any such damages payable to third 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 the calculation of Final Closing Working Capital or potential lost profits, diminution in value or measures of damages based on a multipleFinal Closing Indebtedness.

Mitigation; Additional Indemnification Provisions. (a) Each Indemnified Party shall use, and cause its Affiliates to use, use commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article X (including X. For purposes of this Agreement, Losses shall be decreased by taking reasonable best efforts to seek full recovery under all insurance and indemnity provisions covering any Losses actually realized Tax Benefit resulting from the payment or accrual of such Losses; provided, however, that Tax Benefits shall only be taken into account for which it is seeking indemnification hereunder, such purpose to the same extent as it would if such Loss were not subject to indemnification hereunder). that they are actually realized within three (b3) years of the Closing Date. For purposes of this Agreement, Losses shall be calculated after giving effect to any amounts actually received recovered from third parties, including amounts recovered under any insurance policypolicies with respect to such Losses, (net of any costs to recover such amounts amounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and increases in premiums resulting expenses from insurers of such claim). (c) The 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 which a Loss, after an indemnification is provided payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall be adjusted promptly reimburse the Indemnifying Party for such indemnification payment up to take into account the amount of any net Tax benefit actually so received or realized by the Indemnified Party as a result of the incurrence or payment of any such Losses in the form of a refund or reduction in Taxes otherwise payable within the tax year in which the Losses were incurred or paid, or the next two immediately succeeding tax years, in each case, calculated by comparing Taxes that would have been payable without taking into account any deduction or credit resulting from such Losses and Taxes actually payable by taking into account such deductions or credits (but only after all other items of income, gain, loss and deduction have been taken into account)Party. If the Indemnified Party actually realizes a Tax benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, the Indemnified Party shall pay to the Indemnifying Party the amount that the indemnification payment would have been reduced by if such Tax benefit had been actually realized prior to the time such indemnification payment was made. (d) No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damagesdamages (other than any such damages payable to third parties or in the event of fraud, including actual willful misconduct, or potential lost profits, diminution 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 value or measures the calculation of damages based on a multiplethe Closing Date Net Working Capital.

Mitigation; Additional Indemnification Provisions. (a) Each Indemnified Party shall use, and cause its Affiliates to use, use commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article X (including X. For purposes of this Agreement, Losses shall be decreased by taking reasonable best efforts to seek full recovery under all insurance and indemnity provisions covering any Losses actually realized Tax Benefit resulting from the payment or accrual of such Losses; provided, however, that Tax Benefits shall only be taken into account for which it is seeking indemnification hereunder, such purpose to the same extent as it would if such Loss were not subject to indemnification hereunder). that they are actually realized within three (b3) years of the Closing Date. For purposes of this Agreement, Losses shall be calculated after giving effect to any amounts actually received recovered from third parties, including amounts recovered under any insurance policypolicies with respect to such Losses, (net of any costs to recover such amounts amounts. Any Indemnified Party having a claim under these indemnification provisions shall make a good-faith effort to recover all losses, costs, damages and increases in premiums resulting expenses from insurers of such claim). (c) The 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 which a Loss, after an indemnification is provided payment by the Indemnifying Party has been made for such Loss, then the Indemnified Party shall be adjusted promptly reimburse the Indemnifying Party for such indemnification payment up to take into account the amount of any net Tax benefit actually so received or realized by the Indemnified Party as a result of the incurrence or payment of any such Losses in the form of a refund or reduction in Taxes otherwise payable within the tax year in which the Losses were incurred or paid, or the next two immediately succeeding tax years, in each case, calculated by comparing Taxes that would have been payable without taking into account any deduction or credit resulting from such Losses and Taxes actually payable by taking into account such deductions or credits (but only after all other items of income, gain, loss and deduction have been taken into account)Party. If the Indemnified Party actually realizes a Tax benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, the Indemnified Party shall pay to the Indemnifying Party the amount that the indemnification payment would have been reduced by if such Tax benefit had been actually realized prior to the time such indemnification payment was made. (d) No Indemnified Party will, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damagesdamages (other than any such damages payable to third parties or in the event of fraud, including actual willful misconduct, or potential lost profits, diminution 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 value or measures the calculation of damages based on a multiplethe Closing Date Net Working Capital.

Mitigation; Additional Indemnification Provisions. (a) Each Indemnified Party shall use, and cause its Affiliates to use, commercially reasonable efforts to mitigate any claim or liability that an Indemnified Party asserts under this Article X Section 16 (including by taking commercially reasonable best efforts to seek full recovery under all insurance and indemnity provisions covering any Losses Liabilities for which it is seeking indemnification hereunder, to the same extent as it would if such Loss Liability were not subject to indemnification hereunder). (b) . In the event that an Indemnified Party shall fail to use or cause its Affiliates to use such commercially reasonable efforts to mitigate any claim or Liability, 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 actually received recovered from third parties, including amounts recovered under any insurance policypolicies with respect to such Liabilities, (net of any costs to recover such amounts amounts. Any Indemnified Party having a claim under these indemnification provisions shall use commercially reasonable efforts to seek full recovery under all insurance and increases in premiums resulting from indemnity provisions covering any Liabilities for which it is seeking indemnification hereunder, to the same extent as it would if such claim). (c) The amount Liability were not subject to indemnification hereunder. For purposes of any Losses for which indemnification is provided shall be adjusted to take into account the amount of any net Tax benefit actually realized by the Indemnified Party as a result of the incurrence or payment of any such Losses similar obligation under this Agreement, including in the form of a refund or reduction in Taxes otherwise payable within the tax year in which the Losses were incurred or paid, or the next two immediately succeeding tax years, in each case, calculated by comparing Taxes that would have been payable without taking into account any deduction or credit resulting from such Losses and Taxes actually payable by taking into account such deductions or credits (but only after all other items of income, gain, loss and deduction have been taken into account). If the Indemnified Party actually realizes a Tax benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was madethis Section 16, the Indemnified Party shall pay to the Indemnifying Party the amount that the indemnification payment would have been reduced by if such Tax benefit had been actually realized prior to the time such indemnification payment was made. (d) No Indemnified Party willindemnified party will not, in any event, be entitled to any incidental, indirect, consequential, special, exemplary or punitive damages, including actual or potential lost profits, diminution in value or measures of damages based on a multiple; provided, for the avoidance of doubt, 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 nature of the damages recovered by such third party.