Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary. (b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 2 contracts
Sources: Master Agreement (Marathon Oil Corp), Master Agreement (Marathon Oil Corp)
Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article XI shall be net of any amounts actually recovered or recoverable by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery).
(b) If the amount of any Loss for which indemnification is provided in clause under this Article XI gives rise to a currently realizable Tax benefit (i), (ii), (iii), (ivas defined below) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by to the indemnified party under making the True Insurance Policies (as such term is defined in Indemnification Claim, then the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement Indemnification Claim shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. To the extent such Indemnification Claim does not give rise to a currently realizable Tax benefit, if the amount with respect to which any Indemnification Claim is made gives rise to a subsequently realized Tax benefit to the indemnified party that made the Indemnification Claim, such indemnified party shall refund to the indemnifying party the amount of such Tax benefit (with and including any gross-up payment made pursuant to this Section 11.6(b) with respect to such Tax benefit) when, as and if realized (it being understood that such indemnified party shall use its commercially reasonable efforts to realize such Tax benefit). For purposes of this Section 11.6(b), a “Tax benefit” means an amount by which the Tax liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax cost or Tax Benefitbenefit, 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this AgreementSection 11.6(b), an indemnified party shall be deemed to have a Tax benefit is “actually realizedcurrently realizable” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would Tax benefit can be required realized in the current taxable period or year or in any tax return with respect thereto (including through a carryback to pay but for a prior taxable period) or in any taxable period or year prior to the receipt or accrual date of the indemnity payment or the deductibility of such Loss, as the case may beIndemnification Claim. The amount of any increase increase, reduction or reduction payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 870-AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party parties to this Agreement to reflect such adjustment shall be made if necessary.
(b) No indemnified party . Any indemnity payment under this Article XI shall be entitled treated as an adjustment to indemnification pursuant to Section 13.01(athe value of the asset upon which the underlying Indemnification Claim was based, unless a final determination (which shall include the execution of a Form 870- AD or successor form) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party or any of its Affiliates causes any such payment not to be treated as an adjustment to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights value of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsasset for United States federal income tax purposes.
Appears in 2 contracts
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of Losses payable under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement ARTICLE VIII by the Indemnifying Party shall be net of (i) any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies applicable insurance policies (as such term is defined in the ATCA) with respect to such Loss; providednet of costs of any recovery (including any deductible amounts, attorney’s fees and any increased insurance premiums)), excluding, however, that the indemnified party shall not have any obligation to seek any such recovery under any True R&W Insurance Policy. The amount of any Loss for Policy (which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred governed by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increaseSection 8.5 hereof) and (ii) reduced to take account of any net Tax Benefit benefit (A) arising in connection with the incurrence or payment of the applicable Loss giving rise to the claim for indemnification (including any Tax benefit arising as defined in a result of an adjustment that has the ATCAeffect of either moving (1) realized by the indemnified party arising from the deductibility any Taxes or an item of any such Loss. In computing the amount of any such Tax cost income or Tax Benefit, the indemnified party shall be deemed to recognize all other items of income, gain, in each case, from a Post-Closing Period to a Pre-Closing Period or (2) a loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard a Pre-Closing Period to clauses (ia Post-Closing Period) and (iiB) in that is actually utilized by the second sentence of this Section 13.03, and shall be increased Indemnified Party or reduced its Affiliates to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, reduce the amount of Taxes payable by such indemnified party is increased above the Indemnified Party or reduced below, any of its Affiliates (as determined on a with and without basis and as the case may belast item taken into account) in (1) the Tax period in which the applicable indemnification payment was made to the Indemnified Party, (2) any taxable period beginning before the taxable period that includes the date on which the applicable indemnification payment was made to the Indemnified Party or (3) the first three taxable periods beginning after the Tax period that includes the date on which the applicable indemnification payment was made to the Indemnified Party. If the Indemnified Party actually recovers any amounts under applicable insurance policies or recognizes a net Tax benefit, in each case, 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 in the amount of Taxesreceived (or net Tax benefit recognized) by the Indemnified Party, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount net of any increase or reduction hereunder shall be adjusted to reflect expenses reasonably incurred by such Indemnified Party in collecting such amount (including any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, deductible amounts and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryattorneys’ fees).
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(aUNDER NO CIRCUMSTANCES SHALL AN INDEMNIFYING PARTY HAVE ANY LIABILITY TO ANY INDEMNIFIED PARTIES UNDER THIS AGREEMENT FOR, AND THE INDEMNIFIED PARTIES SHALL NOT HAVE THE RIGHT TO CLAIM OR RECOVER FROM THE INDEMNIFYING PARTY, ANY EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER, EXCEPT (I) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any LossTO THE EXTENT RECOVERED FROM THE INDEMNIFIED PARTY BY A THIRD PARTY OR (II) ARISING FROM FRAUD, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsWILLFUL MISCONDUCT OR INTENTIONAL MISREPRESENTATION OF THE INDEMNIFYING PARTY.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Quipt Home Medical Corp.), Membership Interest Purchase Agreement (Great Elm Group, Inc.)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) under this Article VIII or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article IX shall be net of any amounts actually recovered by the indemnified party Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the True Insurance Policies (as such term is defined in the ATCA) Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement and shall be (i) increased adjusted to take account of the actual amount of any net Tax cost incurred benefit or Tax detriment realized by the indemnified party Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the receipt incurrence or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility payment of any such Loss. In computing the amount of any such Tax cost benefit or Tax Benefitdetriment, the indemnified party Indemnified Party shall be deemed to recognize all other and receive items of income, gain, loss, loss deduction or credit before recognizing any item arising resulting from the receipt Loss giving rise to indemnification upon actual recognition of such loss deduction or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03credit; further, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent thatthat the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, and at such time as, the Indemnified Party shall reimburse the Indemnifying Party for the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility Tax benefit upon actual utilization of such Loss, as Tax benefit by the case may beIndemnified Party. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability Such payment for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment reimbursement shall be made if necessaryto the Indemnifying Party within ten Business Days of the utilization of such Tax benefit.
(b) No indemnified party Notwithstanding anything to the contrary contained herein, no indemnification shall be entitled provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim).
(c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification pursuant payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to Section 13.01(a) indemnify Buyer with respect to any Loss that has been taken account indirect or consequential damages in excess of U.S.$25,000,000 (other than in any adjustment pursuant respect of indirect and consequential damage arising with respect to Section 1.05 a breach of the Maleic Agreement. If representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) indirect or 13.02(aconsequential damages that may be recovered by Buyer), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Sigma Aldrich Corp)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “"actually realized” " a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s 's liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.1.05
Appears in 2 contracts
Sources: Master Agreement (Ashland Inc), Master Agreement (Ashland Inc)
Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article X shall be net of any (i) Tax benefits actually realized by way of a current reduced cash outlay for Taxes by the indemnified party, and amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies or otherwise with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount Losses (net of any Loss for which indemnification is provided pursuant to Section 13.01(aTax or expenses incurred in connection with such recovery), (ii) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred amounts recovered by the indemnified party arising from the receipt pursuant to any indemnification by or accrual indemnification or other agreement with any third party, (iii) any insurance proceeds or other cash receipts or sources of indemnity payments hereunder reimbursement received as a direct offset against such Loss (grossed up for net of any costs incurred to recover such increaseamounts) (each source named in clauses (ii) and (iiiii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the a “Collateral Source”). The indemnifying party may require an indemnified party arising to assign the rights to seek recovery from a Collateral Source; provided that the deductibility indemnifying party will then be responsible for pursuing such recovery at its own expense. Purchaser shall use its commercially reasonable efforts to recover under insurance policies for any Losses prior to seeking indemnification under this Agreement. For purposes 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after determining when the indemnified party has actually realized such cost or benefit. For purposes of a Tax benefit under this AgreementSection, an if the indemnified party or any consolidated group of which it is a member for Tax purposes has other items of deduction, loss or credit for any taxable period ending no later than the last day of the taxable year in which the indemnity payment is made, the items of Tax benefit arising out of the Losses for which indemnity is sought shall be deemed used first prior to have “actually realized” a net Tax cost use of any such other items. The party seeking indemnification under this Article X shall use commercially reasonable efforts to seek recovery from Collateral Sources. The parties acknowledge and agree that no right of subrogation shall accrue or a net Tax Benefit inure to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount benefit of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryCollateral Source hereunder.
(b) No indemnified Notwithstanding anything to the contrary elsewhere in this Agreement, no party shall in any event be entitled to indemnification pursuant to Section 13.01(a) with respect liable to any Loss that has been taken account other Person for any consequential, special or punitive damages or any Losses based upon any multiple of in any adjustment pursuant lost earnings or other similar methodology used to Section 1.05 value the Company or the Securities based on the financial performance or results of operations of the Maleic Agreement. If the amount of any LossCompany or its Subsidiaries, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a)except, is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shalleach case, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against that any third party asserts a claim against the Company or any of its Subsidiaries for any such damages that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightshereunder.
Appears in 2 contracts
Sources: Stock Purchase Agreement (UCI Holdco, Inc.), Stock Purchase Agreement (United Components Inc)
Calculation of Losses. (ai) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of under Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a9.b(i) or Section 13.02(a9.c(i) of this Agreement shall be (i) increased adjusted to take account of any net Tax cost incurred or Tax benefit actually realized by the indemnified party Indemnified Party or its Affiliates in the form of an increase or reduction in cash Taxes otherwise payable or a cash Tax refund with respect to the taxable year in which the applicable indemnification is received or any prior taxable year by the Indemnitee (or any of its Affiliates) arising from the receipt incurrence or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility payment of any such Loss. In computing the amount of If any such Tax cost or Tax Benefitbenefit is incurred or received, as applicable, by an Indemnified Party after an indemnity payment with respect to a Loss has been made, the indemnified party Indemnified Party shall be deemed pay to recognize all other items the Indemnifying Party the amount of income, gain, loss, deduction or credit before recognizing any item arising from such Tax benefit (up to the receipt or accrual amount of any the Indemnifying Party’s indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (ipayment) and the Indemnifying Party shall pay to the Indemnified Party the amount of such Tax cost.
(ii) in the second sentence The amount of this Losses recoverable by an Indemnified Party under Section 13.03, and 9.b(i) or Section 9.c(i) shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, by the amount of Taxes payable any payment received by such indemnified Indemnified Party (or an Affiliate thereof) from an insurance carrier or third-party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) indemnitor with respect to the indemnified party’s liability Losses to which such claim for Taxesindemnification relates, net of the cost of collection and payments between the indemnified any increase in insurance cost directly resulting from such recovery. If an Indemnified Party (or an Affiliate thereof) receives any insurance payment or third-party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) indemnity payment with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of claim for Losses for which it previously received indemnification from the Maleic Agreement. If the amount of any LossIndemnifying Party, at any time subsequent it shall pay to the making Indemnifying Party within thirty (30) days of any receiving such insurance payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or third-party indemnity payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums insurance payment or other offsets incurred in connection therewith, third-party indemnity payment.
(iii) Any indemnity payment under Section 9.b(i) or Section 9.c(i) shall promptly be repaid by the indemnified party treated as an adjustment to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, Purchase Price to the maximum extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party allowable under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsapplicable Law.
Appears in 2 contracts
Sources: Purchase Agreement (Adma Biologics, Inc.), Master Purchase and Sale Agreement (Adma Biologics, Inc.)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article VIII shall be net of any amounts (a) actually recovered by the indemnified party any Indemnified Party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies or any other source of indemnification with respect to such Loss; provided, howeverand (b) accrued on the Company or any Subsidiary’s balance sheet as of the Closing Date and taken into account in the calculation of the Final Merger Consideration with respect to such Loss, that and shall be reduced to take into account any net Tax Benefit. All indemnification payments for Losses made pursuant to this Article VIII shall be made on an after-Tax basis. Accordingly, in determining the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any indemnification payment for a Loss for which indemnification is provided pursuant to Section 13.01(a) suffered or Section 13.02(a) incurred by an Indemnified Party hereunder, the amount of this Agreement such Loss shall be (i) increased decreased to take into account of any net Tax cost incurred by the indemnified party arising from the receipt deduction, credit or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) other tax benefit actually realized by the indemnified party arising from Indemnified Party with respect to such Loss after taking into account any income, gain or other tax cost realized by the deductibility Indemnified Party with respect to the accrual or receipt of any indemnification payment or any other payment with respect to such LossLoss (“Tax Benefits”). In computing the amount of any such Tax cost or net Tax Benefit, the indemnified party Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the accrual or receipt or accrual of any indemnity indemnification payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03; provided, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreementthat, an indemnified party shall be deemed to have “actually realized” a net Tax cost or if a net Tax Benefit to is not realized in the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity taxable period during which an Indemnifying Party makes an indemnification payment or the deductibility of such Loss, as the case may be. The amount of any increase Indemnified Party incurs or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of pays any Loss, the parties hereto shall thereafter make payments to one another at any time the end of each subsequent taxable period to reflect the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid net Tax Benefit realized by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of parties hereto in each such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightssubsequent taxable period.
Appears in 1 contract
Sources: Merger Agreement (Nn Inc)
Calculation of Losses. (a) The amount of any Loss taken into account for all purposes under this Article 8 shall be reduced by any amounts recovered by the Indemnified Party under any insurance policies in effect prior to the Closing Date. With respect to any such insurance policies and subject to the terms thereof, (i) each Company Entity agrees not to cancel or terminate prior to the end of their then current term any of such policies (including any directors and officers liability coverage) the premiums for which have been paid in full by the Closing Date, and (ii) the Indemnitor shall be subrogated to the rights of the Company Entities thereunder to the extent of payments made by such Indemnitor.
(b) Notwithstanding anything in Article 8 to the contrary, no Indemnified Party or its successors or assigns shall have any right or entitlement to indemnification from an Indemnitor for any Losses relating to any matter arising under the provisions of this Agreement, to the extent that any such Indemnified Party or its successors and assigns had already recovered Losses with respect to the same matter pursuant to any other provision of this Agreement or the Canadian Purchase Agreement, and such Indemnified Parties shall be deemed to have waived and released any claims for such Losses and shall not be entitled to assert any such claim for indemnification for such Losses.
(c) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit actually realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially The present value of any tax benefits to be made without regard to clauses (i) and (ii) realized in the second sentence future shall be reasonably estimated by the Parties for purposes of this Section 13.038.7(c). If the Parties are unable to agree on such present value, and the matter shall be increased or reduced referred to reflect any the Settlement Accountants whose reasonably estimation of such net Tax cost present value shall be binding on the Parties.
(including gross-upd) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, determining the amount of Taxes payable Losses resulting from a breach by such indemnified party is increased above Sellers or reduced belowUSA of a representation or warranty, as but not whether the case may bebreach itself has occurred, any materiality qualification or limitation contained in the amount applicable representation or warranty (whether by the terms “material” or “materiality” or by reference to a “Material Adverse Effect,” a “Material Adverse Change,” or words of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder similar meaning) shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessarydisregarded.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 1 contract
Calculation of Losses. (a) The amount For the purposes of the indemnification provisions set forth in this Article X, any Loss for which indemnification is provided Losses or amounts otherwise payable hereunder (including amounts relating to Taxes pursuant to Section 10.03) shall be (a) determined on the basis of the net effect after giving effect to any cash payments, setoffs or recoupment (and any costs and expenses incurred in clause (isecuring such cash payment, setoff or recoupment), in each case, actually received or, in the case of setoffs, retained by the indemnified party (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of including any amounts actually recovered by the indemnified party under insurance policies net of the True Insurance Policies (net present value of any reasonably expected increases in premiums associated with such policies as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any proximate result of such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall the extent such increased premiums will be (i) increased to take account of any net Tax cost incurred paid by the indemnified party arising from the receipt or accrual its Affiliates) as a result of indemnity payments hereunder (grossed up any event giving rise to a claim for such increase) indemnification and (iib) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit actually realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. In computing Loss and increased by the amount of any Tax detriment resulting from 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses claim (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, below the amount of Taxes, Taxes that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility incurrence or payment of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary).
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 For purposes of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to under Section 13.01(a) or 13.02(a10.01(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is Seller shall not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, liable to the extent of any Losses that are proximately caused as result of (A) any action taken or omitted to be taken by Purchaser or any of its Affiliates or (B) any breach by Purchaser or any of its Affiliates of a representation or warranty or covenant under any Transaction Document (it being understood that, in each case, the calculation of Losses shall not be affected or otherwise limited by any such paymentact or omission that results in the discovery, be subrogated to all rights identification or manifestation of the physical or factual conditions from which such Losses arise that does not exacerbate the underlying conditions or factual circumstances from which such Losses arose, provided that the language in this parenthetical shall be disregarded to the extent such language would otherwise reasonably be read to limit the provisions of Section 10.01(b)(iv) of this Agreement ). The calculation of any Losses under this Article X shall take into account the amount by which such matter was reflected in the calculation of the adjustment to the Purchase Price, if any, pursuant to Section 2.02 or in any other Losses that such party or any of its Affiliates were indemnified party (other than for pursuant to this Article X or Article V of the Restructuring Agreement. The calculation of any rights of such Losses payable to an indemnified party under any insurance policies) against any third party that this Article X relating to, arising out of or resulting from a guarantee, Non-CTS Liability or other similar indirect or contingent Liability also shall take into account whether or not payment of such Liability has been demanded and is not an affiliate of due from the indemnified party party; provided that for the avoidance of doubt the reimbursement of defense costs and other similar Losses relating to, arising out of or resulting from such Liability shall not be delayed in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsany way by this sentence.
Appears in 1 contract
Sources: Stock Purchase Agreement (Catalent Pharma Solutions, Inc.)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of Losses payable under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article XI by the Indemnifying Party shall be net of any (i) amounts actually recovered by the indemnified party Indemnified Party under applicable insurance policies (but not including (y) any self-insurance of Parent or an Affiliate of Parent (including any Acquired Company), or (z) any insurance policy under which the True Insurance Policies Company Subsidiary is the insurer to Parent or an Affiliate of Parent (as including any Acquired Company)) or from any other Person alleged to be responsible therefor and (ii) the reduction in Taxes realized by the Indemnified Party arising from the incurrence or payment of any such term is defined Losses. If the Indemnified Party receives any amounts under such applicable insurance policies or from any other Person alleged to be responsible for any Losses or realizes a reduction in Taxes attributable to a Loss subsequent to an indemnification payment by the ATCA) Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made, expense incurred or reduction in Taxes realized by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by or realized by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. The Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance coverage or from such other Person alleged to have responsibility therefore, provided that the Indemnified Party shall have the right to seek, claim and collect indemnification under this Article XI without first being required to assert any claim, right or remedy with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policyinsurance coverage or other Persons. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement Indemnifying Party shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party in respect of any Losses indemnified party by the Indemnifying Party.
(other than b) The Indemnifying Party shall not be liable under this Article XI for any rights (i) Losses relating to any matter to the extent that there is included in the final Statement of Closing Net Working Capital determined in accordance with Section 3.4, a specific liability or reserve relating to such indemnified party under matter, (ii) Losses relating to any insurance policiesmatter to the extent resolved in accordance with Section 3.5, (iii) against Losses to the extent the Indemnified Party had otherwise been compensated therefor pursuant to the adjustments to the Merger Consideration pursuant to Section 3.4 or (iv) any third party Losses to the extent that is not an affiliate of the indemnified party Indemnified Party has already previously recovered the same Losses in respect of the indemnifiable Loss same claim (i.e., no “double counting” of Losses).
(c) For purposes of determining whether an Indemnified Party has a right to which indemnification under Section 11.3(a) or Section 11.4(a) and for determining the amount of Losses with respect thereto, the representations and warranties contained in this Agreement that are qualified by reference to “material,” “materially,” “Material Adverse Change,” “Material Adverse Effect,” or any similar term shall be deemed to have been made without giving effect to such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsmateriality qualifiers.
Appears in 1 contract
Sources: Merger Agreement (Paychex Inc)
Calculation of Losses. (a) The amount of any Loss or Tax Loss for which indemnification is provided in clause under this Article VIII or Article IX shall be (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered and received by the indemnified party as a result of any indemnification by a third party or under the True Insurance Policies (as such term is defined in the ATCA) insurance policies with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit benefit currently realized (as defined in the ATCAform of cash from, or as a reduction of a cash liability owed to, a Taxing Authority, or in the form of a deferred tax asset) realized by the indemnified party arising from the deductibility circumstances giving rise to the incurrence or payment of any such Loss. In computing For purposes of the amount preceding sentence, the deferred tax asset shall be calculated net of any such Tax cost or Tax Benefitvaluation allowance reasonably determined by the Company, except that in calculating the valuation allowance, the indemnified party underlying tax attribute shall be deemed to recognize all expire after five calendar years (if it does not expire earlier under then-Applicable Law). Purchaser, the Company and the Subsidiaries shall provide Seller and its affiliates with reasonable access to information, including copies of relevant Tax Returns or portions thereof, together with accompanying schedules, related workpapers and documents relating to rulings or other items of incomedeterminations by Taxing Authorities, gain, loss, deduction or credit before recognizing any item arising from as are reasonably necessary for the receipt or accrual determination of any indemnity payment hereunder or net Tax benefit (and may redact such information as is not reasonably necessary for the deductibility determination of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) net Tax benefit), and (ii) in the second sentence of this Section 13.03Seller shall, and shall be increased or reduced to reflect cause its affiliates to, keep all such information and items confidential and shall use such information solely in connection with the determination of any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) If any insurance proceeds or other amounts are received by any Purchaser Indemnitee or Seller Indemnitee after receipt of any indemnification payment pursuant to this Article VIII, Purchaser or Seller, as applicable, shall promptly repay to the indemnifying party such portion of such indemnification payment equal to the amounts so recovered or realized.
(c) The amount of the Loss or Tax Loss arising out of any item reflected as a liability or provided for or reserved against in calculating the Closing Date Book Value (as finally determined under Section 1.04) shall be calculated net of the amount so reflected, provided for or reserved against. Notwithstanding any other provision of this Agreement to the contrary, no Purchaser Indemnitee shall be entitled to indemnification under this Article VIII or Article IX for any Losses or Tax Losses to the extent such Losses or Tax Losses are reflected, provided for or reserved against in the Closing Date Book Value.
(d) For the avoidance of doubt, neither Seller nor the Company makes any representation, warranty or guarantee whatsoever that the Insurance Reserves held by or on behalf of the Company and the Subsidiaries are or will be sufficient for the purposes for which they were established, and nothing in this Agreement shall be construed as providing the economic equivalent of any such representation, warranty or guarantee. Notwithstanding any other provision of this Agreement to the contrary, no Purchaser Indemnitee shall be entitled to indemnification under this Article VIII for any Losses to the extent such Losses arise out of any failure of the Insurance Reserves held by or on behalf of the Company and the Subsidiaries to be sufficient for the purposes for which they were established and regardless of whether such Insurance Reserves are general in nature or specific to a particular matter.
(e) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) under this Article VIII or Article IX with respect to any Loss Losses or Tax Losses that has been taken account are in the nature of punitive, incidental, consequential, special, treble or indirect damages or damages based on any multiple, including business interruption, loss of future revenue, profits or income, or loss of business reputation or opportunity, in each case of any adjustment pursuant to Section 1.05 kind or nature, regardless of the Maleic Agreement. If the amount form of action through which any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, foregoing are sought unless such party satisfies all of the amount elements necessary for recovery of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by Losses under the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights laws of the indemnified party (other than any rights State of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsNew York.
Appears in 1 contract
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD)
Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article X shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies or otherwise with respect to such Loss; providedLosses (net of any Tax or expenses incurred in connection with such recovery).
(b) If, howevernotwithstanding the treatment required by Section 10.8, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant under this Article X gives rise to Section 13.01(aa currently realizable Tax benefit (as defined below) or Section 13.02(a) of this Agreement to the Indemnified Party making the Indemnification Claim, then the Indemnification Claim shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. To the extent such Indemnification Claim does not give rise to a currently realizable Tax benefit, if, notwithstanding the treatment required by Section 10.8, the amount with respect to which any Indemnification Claim is made gives rise to a subsequently realized Tax benefit to the indemnified party that made the Indemnification Claim, such indemnified party shall refund to the indemnifying party the amount of such Tax benefit (with and including any gross-up payment made pursuant to this Section 10.7 with respect to such Tax benefit) when, as and if realized (it being understood that such indemnified party shall use its reasonable efforts to realize such Tax benefit). For purposes of this Section 10.7, a “Tax benefit” means an amount by which the Tax liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Tax Authority. In computing the amount of any such Tax cost or Tax Benefitbenefit, 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this AgreementSection 10.7, an indemnified party shall be deemed to have a Tax benefit is “actually realizedcurrently realizable” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would Tax benefit can be required realized in the current taxable period or year or in any Tax Return with respect thereto (including through a carryback to pay but for a prior taxable period) or in any taxable period or year prior to the receipt or accrual date of the indemnity payment or the deductibility of such Loss, as the case may beIndemnification Claim. The amount of any increase increase, reduction or reduction payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 870-AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party parties to this Agreement to reflect such adjustment shall be made if necessary.
(b) No indemnified party . Any indemnity payment under this Article X shall be entitled treated as an adjustment to indemnification pursuant to Section 13.01(athe value of the asset upon which the underlying Indemnification Claim was based, unless a final determination (which shall include the execution of a Form 870-AD or successor form) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party or any of its Affiliates causes any such payment not to be treated as an adjustment to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights value of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsasset for United States federal income tax purposes.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Any indemnity payment made by an Indemnifying Party to an Indemnified Party pursuant to Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement 5.2 shall be made net of (x) any amounts actually recovered by the indemnified party Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible for the True Insurance Policies matters underlying such indemnity payment less (as such term is defined y) any related costs and expenses, including the aggregate cost of pursuing any related insurance claims plus any related increases in the ATCA) with respect to such Lossinsurance premiums or other chargebacks; provided, however, that notwithstanding anything in Section 5.4(d) to the indemnified contrary no party shall not have any obligation to seek to recover any insurance proceeds or to initiate a lawsuit against any other Person in connection with making a claim under this Article V. If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for the matters underlying such recovery under indemnity payment subsequent to an indemnification payment by the Indemnifying Party, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any True Insurance Policy. payment made or expense incurred by the Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party.
(b) The amount of any Loss for which indemnification is provided indemnities payable by the Seller Parent or the Seller to the Buyer Indemnified Parties pursuant to Section 13.01(a5.2(a) or Section 13.02(a8.1(a) shall be reduced by any reserves in respect of the Loss giving rise to such indemnity payment recorded on either Year End Balance Sheet to the extent such reserves are specifically related to such Loss.
(c) Each Indemnified Party shall use commercially reasonable efforts to mitigate any Loss that the Indemnified Party asserts or is reasonably likely to assert under this Article V upon a responsible officer of any Indemnified Party becoming aware of any event that would reasonably be expected to give rise to such assertion. In the event that the Indemnified Party shall fail to make, or cause to be made, any such commercially reasonable efforts to mitigate any such claim or liability, then notwithstanding anything to the contrary contained in this Agreement, the Indemnifying Party shall not be required to indemnify any Indemnified Party for that portion of any Losses that would reasonably be expected, individually or in the aggregate, to have been avoided if the Indemnified Party had made such efforts.
(d) Each Indemnified Party shall use all commercially reasonable efforts to collect any and all amounts available under insurance coverage or from any other Person alleged to be responsible for any Losses payable under Section 5.2, and shall take such actions in such respect as the Indemnifying Party may reasonably request. If the Indemnified Party receives any payment from the Indemnifying Party in respect of any Losses pursuant to Section 5.2 and the Indemnified Party could have recovered all or part of such Losses from a third 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 such third party the amount of such payment.
(e) Any indemnification payments made pursuant to this Agreement shall be treated for Tax purposes as an adjustment to the Purchase Price, unless otherwise required by applicable Law.
(if) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility of any such Loss. In computing the amount of any such Tax cost or Tax Benefit, the indemnified party No Indemnifying Party shall be deemed liable pursuant to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up5.2(a) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below5.2(b), as the case may be, in respect of any Loss if such Loss would not have arisen but for, or to the amount of Taxesextent any Loss is increased as a result of, that such indemnified party would be required (i) the passing of, or a change in, a Law or a change to pay but for the receipt or accrual any written interpretation of the indemnity payment Law or the deductibility of such Loss, as the case may be. The amount administrative practice of any increase Governmental Authority occurring on or reduction hereunder shall be adjusted to reflect after the Closing or (ii) the change by statute or by any final determination (which shall include the execution regulatory or other similar official auditing standards body of Form 870 AD or successor form) with respect any accounting policy applicable to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryapplicable Indemnified Party.
(bg) No indemnified party Indemnifying Party shall be entitled to indemnification pursuant to Section 13.01(a) with respect liable to any Loss that has been taken account of Indemnified Party in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount respect of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise Loss under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, this Article V to the extent such Loss is attributable to, or to the extent any Loss is increased as a result of, any (i) act, omission, transaction, or arrangement carried out at the written request of or with the written approval of such paymentIndemnified Party, be subrogated to all rights of the indemnified party (other than any rights ii) act, transaction or arrangement carried out by or on behalf of such indemnified party Indemnified Party if such act, transaction or arrangement was not commercially reasonable independent of such Indemnified Party’s rights to indemnification under this Agreement, or (iii) breach by such Indemnified Party of any insurance policies) against of its obligations under this Agreement or any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsAncillary Transaction Agreements or any obligations entered into pursuant thereto.
Appears in 1 contract
Sources: Purchase Agreement (Ml Life Insurance Co of New York)
Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article XI shall be net of any amounts actually recovered or recoverable by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery).
(b) If the amount of any Loss for which indemnification is provided in clause under this Article XI gives rise to a realizable Tax benefit (i), (ii), (iii), (ivas defined below) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by to the indemnified party under making the True Insurance Policies (as such term is defined in Indemnification Claim, then the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement Indemnification Claim shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. To the extent such Indemnification Claim does not give rise to a realizable Tax benefit, if the amount with respect to which any Indemnification Claim is made gives rise to a subsequently realized Tax benefit to the indemnified party that made the Indemnification Claim, such indemnified party shall refund to the indemnifying party the amount of such Tax benefit (with and including any gross-up payment made pursuant to this Section 11.6 with respect to such Tax benefit) when, as and if realized (it being understood that such indemnified party shall use its reasonable efforts to realize such Tax benefit). For purposes of this Section 11.6, a “Tax benefit” means an amount by which the Tax liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax cost or Tax Benefitbenefit, 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 1 contract
Sources: Note and Equity Purchase Agreement
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in under clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a7.02(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a7.03(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies insurance policies (as such term is defined after reduction for any costs or expenses incurred in the ATCAconnection therewith, including, retrospective and prospective premium adjustments and experience-based premium adjustments) with respect to such Loss; provided, however, . Each of the parties hereto acknowledges and agrees that neither the indemnified party Seller nor the Purchaser shall not have any obligation to seek maintain insurance except as required under the Supply Agreement or be obligated to have to resort to litigation against insurance carriers in order to pursue any such recovery under any True Insurance Policy. insurance claims.
(b) The amount of any Loss for which indemnification is provided pursuant to under clause (i) of Section 13.01(a7.02(a) or Section 13.02(aclause (i) of this Agreement Section 7.03(a) shall be (ia) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (iib) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit immediately realized by the indemnified party in cash arising from the deductibility incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, loss deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder under clause (i) of Section 7.02(a) or clause (i) of Section 7.03(a) or the deductibility incurrence or payment of any indemnified Loss. Any indemnification indemnity payment hereunder shall initially be made without regard to clauses under clause (i) and of Section 7.02(a) or clause (iii) in the second sentence of this Section 13.03, and 7.03(a) shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, treated as an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit adjustment to the extent thatPurchase Price for Tax purposes, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any unless a final determination (which shall include the execution of a Form 870 870-AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to or any Loss that has been taken account of in its Affiliates causes any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each not to be treated as an adjustment to such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsprice for federal income Tax purposes.
Appears in 1 contract
Sources: Asset Purchase Agreement (King Pharmaceuticals Inc)
Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article IX shall be net of any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies or otherwise with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. Losses.
(b) The amount of any Loss Losses for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of under this Agreement Article IX shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising Indemnified Party resulting from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising Indemnified Party resulting from the deductibility incurrence or payment of any such LossLoss or that would be realized if the proceeds of such indemnity payment were used to ameliorate the circumstance that gave rise to the Indemnification Claim (in each case, grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). To the extent payment of such Claim does not give rise to a Tax cost currently payable by the Indemnified Party, if payment of the Claim gives rise to a Tax cost subsequently payable by the Indemnified Party, the Indemnifying Party shall pay the Indemnified Party the amount of such Tax cost when, as, and if payable by the Indemnified Party (grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). To the extent such Claim does not give rise to a currently realizable Tax benefit, if the amount with respect to which any Claim is made gives rise to a subsequently realized Tax benefit to the Indemnified Party that made the Claim, such Indemnified Party shall refund to the Indemnifying Party the amount of such Tax benefit when, as and if realized (grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). An Indemnified Party shall use its reasonable efforts to maximize and accelerate Tax benefits and to minimize and defer Tax costs whenever legally permissible. For purposes of this Section 9.7, "Tax cost" means the amount by which the Tax liability of the party (or group of entities including the party) is increased (including by increase in gross income, reduction in deductions by virtue of decreased tax basis or otherwise, reduction of refund or credit to which the party would otherwise be entitled, or otherwise) plus any related interest, penalty, or addition to tax payable to the relevant taxing authority as a result of such Tax cost; and "Tax benefit" means the amount by which the Tax liability of the party (or group of entities including the party) is or could be reduced (including by reduction of gross income, availability of deductions, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received or reduction of interest payable directly related to such Tax benefit. For purposes of this Section 9.7, "Tax benefits" and "Tax costs" shall be computed as if Buyer were a corporation subject to tax under Section 11 of the Code." In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this AgreementSection 9.7, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit is "currently payable" to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required Tax cost relates to pay but for the receipt current taxable period or accrual year or any Tax Return with respect thereto or to any taxable period or year prior to the date of the indemnity payment Claim; and a Tax benefit is "currently realizable" to the extent that such Tax benefit could be realized in the current taxable period or year or in any Tax Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the deductibility date of such Loss, as the case may beClaim. The amount of any increase increase, reduction or reduction payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s Indemnified Party's liability for Taxes, and payments between the indemnified party and the indemnifying party parties to this Agreement to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account . For purposes of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If determining the amount of any LossTax cost or Tax benefit hereunder, at any time subsequent the receipt of an indemnity payment shall be treated as an adjustment to the making basis of any the asset or assets upon which the underlying Claim that gave rise to the indemnity payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any was based and payment of an indemnified claim, recoveryif required to be capitalized, settlement shall be treated as an adjustment to the basis of the same asset or assets. If the Internal Revenue Service asserts that such basis adjustments were not properly made, the Indemnified Party shall make such additional adjustments as are necessary to minimize and defer Tax costs and maximize and accelerate Tax benefits, unless precluded from doing so by a final determination with respect to the Indemnified Party or any of its affiliates or unless it is advised, by written opinion of a tax adviser reasonably acceptable to the Indemnifying Party, which opinion shall be made available to the Indemnifying Party, that any further adjustment is inappropriate. Notwithstanding anything herein to the contrary, if the application of this Section 9.7(b) to an indemnity payment owed by or against any other person that is Sellers hereunder would increase the amount owed by Sellers, Sellers shall be liable to Buyer for such increased amount only if Buyer could not an affiliate avoid such increased Tax cost by foregoing its payment of the indemnified partyClaim and instead providing Sellers the opportunity to pay such Claim directly. For the avoidance of doubt, it is understood between the parties that, regardless of against whom a liability is asserted, if it is feasible for the liability to be paid by Sellers, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly decision as to whether the liability will be repaid paid directly by the indemnified party Sellers to the indemnifying party. Upon making any payment for indemnification pursuant claimant or paid by Sellers to Section 13.01(a) or 13.02(a), the indemnifying party shall, Buyer as an indemnity and then paid by Buyer to the extent claimant shall be made by Sellers, provided that a Seller informs Buyer of such payment, be subrogated to all rights of this decision in writing before the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that liability is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightspaid.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of Losses payable under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement ARTICLE X by the Indemnifying Party shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased net proceeds realized by and paid to take account the Indemnified Party under its applicable insurance policies (determined after giving effect to the net present value (utilizing a discount rate equal to the short-term applicable federal rate as set forth in Section 1274(d) of the Code for the month in which any net Tax cost such payment of insurance proceeds is received the Indemnified Party), as determined by the Indemnified Party, of the aggregate future incremental premium costs incurred by the indemnified party arising Acquired Companies as a consequence of any such Loss and/or of any such payment of insurance proceeds related to any such Loss) or from any other Person alleged to be responsible therefor (determined after giving effect to any increased costs to the receipt or accrual of indemnity payments hereunder (grossed up for such increase) Indemnified Party resulting therefrom), and (ii) reduced to take account of any net the Tax Benefit (benefit as defined in the ATCA) and when realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such LossLosses. In computing If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses described in clause (i) of the preceding sentence, 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 reasonably incurred by such Indemnified Party in collecting such amount. The Indemnified party shall use Reasonable Efforts to collect any amounts available under such insurance coverage or from such other party reasonably alleged to have responsibility therefor (so long as the Indemnified Party has a direct cause of action against such other party).
(b) The Indemnifying Party shall not be liable under this ARTICLE X for any (i) Losses relating to any matter to the extent (but only to the extent) that (A) there is included in the Closing Date Balance Sheet (as finally determined pursuant to SECTION 2.2) a specific liability or specific reserve relating to such specific type of indemnifiable Loss (but only for such Losses to the extent of the amount of any such Tax cost specific liability or Tax Benefitspecific reserve on the Closing Date Balance Sheet (as finally determined pursuant to SECTION 2.2)), or (B) the indemnified party shall be deemed Indemnified Party has otherwise been compensated (on a dollar-for-dollar basis) for such matter pursuant to recognize all other items the Purchase Price adjustment under SECTION 2.2 by virtue of incomesuch Loss being included as a Current Liability, gainor specifically included in an applicable reserve, lossin the calculation of Closing Date Net Working Capital, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03Losses for lost profits resulting from business interruptions.
(c) The Indemnified Parties shall take, and shall be increased or reduced cause their respective Affiliates to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreementtake, an indemnified party shall be deemed all reasonable steps to have “actually realized” a net Tax cost or a net Tax Benefit mitigate and otherwise minimize their Losses to the maximum extent that, reasonably possible upon and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount after becoming aware of any increase or reduction hereunder shall event which would reasonably be adjusted expected to reflect give rise to any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryLosses.
(bd) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount Indemnified Party receives any payment from an Indemnifying Party in respect of any LossLosses and the Indemnified Party could have recovered all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, at any time subsequent the Indemnified Party shall assign such of its rights to proceed against such third party as are necessary to permit the making of any payment for indemnification pursuant Indemnifying Party to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, recover from such third party the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 1 contract
Sources: Stock Purchase Agreement (Commercial Vehicle Group, Inc.)
Calculation of Losses. (a) The amount of any Loss for --------------------- which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement Article VIII shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, loss deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, paragraph and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “"actually realized” " a net Tax cost or a net Tax Benefit benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, Taxes that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility incurrence or payment of such Loss, as the case may be. The amount Any offset made against any Receivable based upon or arising from any liability of any increase or reduction hereunder Seller that Purchaser has not expressly agreed to assume pursuant to Section 1.03(a) shall be adjusted to reflect any final determination (a Loss for which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryindemnification is provided hereunder.
(b) No indemnified party Neither the provisions of Section 1.05 or 6.05 relating to adjustments of the Purchase Price nor the provisions of Article VI relating to Seller's ability to Cure shall be entitled deemed to indemnification pursuant limit the rights of Purchaser under this Article VIII or, subject to Section 13.01(a) with respect the provisions hereof, otherwise to any Loss seek recovery of Losses from Seller; provided, however, that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If calculating the amount of any Loss, at any time subsequent to the making of any payment Loss for which indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced provided under this Article VIII there shall be taken into account amounts received by recovery, settlement or otherwise Purchaser under or pursuant to any claim, recovery, settlement or payment by or against any such other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party provisions in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsLoss.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of Losses payable under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement ARTICLE VII by the Indemnifying Party shall be net of any (i) amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies (as such term is defined in the ATCA) with respect applicable insurance policies or from any other Person alleged to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) responsible therefor and (ii) reduced to take account of any net the Tax Benefit (as defined in the ATCA) realized Benefits actually recognized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such LossLosses in the taxable year of such Loss or the succeeding taxable year. In computing For the avoidance of doubt, Tax Benefits actually recognized does not include any increase in any net operating loss of any Indemnified Party or any increase in the tax basis of any asset held by, or other Tax attribute of, any Indemnified Party until such Tax attribute actually results in a refund, credit for overpayment or reduction in Tax payments. If the Indemnified Party receives a Tax Benefit or 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 in the amount received by the Indemnified Party, net of any expenses reasonably incurred by such Indemnified Party in collecting such amount (including any deductible amounts, attorney’s fees and any increased insurance premiums). If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party could have recovered all or a part of such Losses from a third 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 such third party 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessarypayment.
(b) No indemnified party The Indemnifying Party shall not be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss liable under this ARTICLE VII for Losses that has been taken account are for special, consequential, exemplary or punitive damages or multiples of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, earnings except to the extent of such payment, be subrogated that the Indemnified Party is obligated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against pay any third party that is not an affiliate any amounts for special, consequential, exemplary or punitive damages or multiples of earnings as a result of a Third Party Claim.
(c) No claim shall be made for any Losses which are accounted for in calculating the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsFinal Net Non-Cash Working Capital.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause Losses payable under this Article X by the Indemnifying Party shall be (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies applicable insurance policies or from any other Person alleged to be responsible therefor, and (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (iii)(a) increased to take account of any net Tax cost actually incurred by the indemnified party Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) ), and (iib) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit actually realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such Lossindemnified amount. In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Lossamount. Any 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 hereunder by the Indemnifying Party, then such Indemnified Party shall initially be promptly reimburse the Indemnifying Party for any payment made without regard or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to clauses (i) and (ii) the amount received by the Indemnified Party, net of any direct, out‑of‑pocket expenses reasonably incurred by such Indemnified Party in the second sentence of this Section 13.03, and collecting such amount. The Indemnified Party shall be increased use Reasonable Efforts to collect any amounts available under such insurance coverage or reduced to reflect any from such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed other Person alleged to have “actually realized” a net Tax cost or a net Tax Benefit responsibility therefor. Each Party hereby waives, to the extent thatpermitted under its applicable insurance policies, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case any subrogation rights that its insurer may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) have with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party any indemnifiable Losses. Nothing in this Section 10.6 requires any Indemnified Party to reflect such adjustment shall be made if necessarycarry any particular type or amount of insurance coverage.
(b) No indemnified party Notwithstanding any other provision of this Agreement to the contrary, the Indemnifying Party shall not be entitled to indemnification pursuant to Section 13.01(aliable under this Article X for any (i) with respect Losses relating to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent matter to the making of any payment for indemnification pursuant extent that (A)(1) there is included in the Latest Balance Sheet a specific liability or reserve relating to Section 13.01(asuch matter, (2) or 13.02(a)such matter is an Assumed Liability, is reduced by recovery, settlement or otherwise under or pursuant and (3) the Losses related to any claim, recovery, settlement or payment by or against any other person that is such matter do not an affiliate of the indemnified party, exceed the amount of such reductionspecific liability or reserve; (B) the Indemnified Party shall have otherwise been fully compensated for such matter pursuant to the Purchase Price adjustment under Section 2.2; or (C) the Indemnified Party shall have otherwise been compensated for such matter pursuant to, less or the Loss was taken into account under, any costsother provision of this Agreement, expenses, premiums so as to avoid duplication or other offsets incurred in connection therewith, shall promptly be repaid "double counting" of the same Loss; (ii) Losses for punitive damages brought by the indemnified party to Indemnified Party against the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party Indemnifying Party (other than Losses for punitive damages which are part of a Third Party Claim); or (iii) Losses determined or calculated based upon any rights multiplier of such indemnified party under profits, earnings or cash flow.
(c) The Indemnified Parties shall take, and shall cause their respective Affiliates to take, Reasonable Efforts to mitigate and otherwise minimize their Losses to the maximum extent reasonably possible upon and after becoming aware of any insurance policiesevent which would reasonably be expected to give rise to any Losses.
(d) against The Parties intend that each representation, warranty, covenant and agreement contained in this Agreement has independent significance. If any third party Party has breached any representation, warranty, covenant or agreement contained in this Agreement in any respect, the fact that is not an affiliate there exists another representation, warranty, covenant or agreement relating to the same subject matter (regardless of the indemnified party relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in respect breach of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsfirst representation, warranty, covenant or agreement.
Appears in 1 contract
Calculation of Losses. (ai) In the event any Losses indemnifiable pursuant to Section 10.1(a)(i), Section 10.1(a)(iii), Section 10.1(a)(iv), Section 10.1(a)(v) or Section 10.1(b)(i) and incurred by an Indemnified Party are covered by insurance (including, to the extent the applicable Loss is not expressly excluded from coverage thereunder, the Buyer Insurance Policy, but subject to Section 10.1(j)(ii)) or any indemnity, contribution or other similar right against a third party, each Indemnified Party agrees to use commercially reasonable efforts to seek recovery under such insurance or any indemnity, contribution or other similar right against a third party. The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Losses payable under this Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement 10.1 by the Indemnifying Party shall be net of any (A) amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies applicable insurance policies (as such term is defined net of any costs or expenses incurred in the ATCA) with respect to such Loss; providedcollection thereof, howeverincluding deductibles, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increaseand applicable premium adjustments) and (iiB) reduced to take account of any net Tax Benefit (as defined reduction in the ATCA) realized by Company’s cash Tax liability for the indemnified party arising taxable year in which the applicable Loss was incurred that is attributable to a deduction resulting from the deductibility 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility incurrence of such Loss, to be determined without duplication of any Income Tax Attribute that was included in the calculation of Final Closing Indebtedness (as finally determined pursuant to the terms of this Agreement) or any amounts paid by the Equityholders under Section 10.1(a)(iv). If the Indemnified Party receives any amounts under applicable insurance policies subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for such indemnification payment made by such Indemnifying Party up to the lesser of (A) the amount received by the Indemnified Party under such insurance policies (net of any costs of recovery, including any resulting from increased insurance premium charges) and (B) the indemnification payment made by the Indemnifying Party.
(ii) Each party shall use commercially reasonable efforts to mitigate any Losses which forms the basis of such party’s claim made under this Section 10.1(i)(ii), including (A) responding to such claims or liabilities in the same manner as the case may be. The amount applicable party would respond to such claims or liabilities in the absence of any increase or reduction hereunder shall be adjusted to reflect any final determination the indemnification provisions of this Agreement and (which shall include B) for the execution avoidance of Form 870 AD or successor form) doubt, with respect to Losses indemnifiable pursuant to Section 10.1(a)(i), Section 10.1(a)(iii), Section 10.1(a)(iv), Section 10.1(a)(v) or Section 10.1(b)(i), pursuing recovery against any insurance policy (including, to the indemnified extent the applicable Loss is not expressly excluded from coverage thereunder, the Buyer Insurance Policy, but subject to Section 10.1(j)(ii)) or any indemnity, contribution or similar right against a third party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(biii) No indemnified party Each Equityholder hereby agrees that (A) the availability of indemnification of the Buyer Indemnified Parties under this Section 10.1 shall be determined without regard to any right to indemnification, advancement, contribution or reimbursement that such Equityholder may have from the Company (whether such rights may arise from or pursuant to applicable Law, Contract, the Organizational Documents of the Company or otherwise), and (B) such Equityholder shall not be entitled to any indemnification, advancement, contribution or reimbursement from Buyer, the Company or any of their respective Affiliates for amounts for which Buyer Indemnified Parties would be entitled to indemnification pursuant to under this Section 13.01(a) with respect 10.1 (determined without regard to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums survival periods or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(alimitations), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Losses payable under Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement 4.1 by the Indemnifying Party shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred amounts recovered or recoverable by the indemnified party arising Indemnified Party under applicable insurance policies or from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) any other person alleged to be responsible therefor, and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) tax benefit realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such LossLosses 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 cost or Tax Benefittax benefit, the indemnified party Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item items arising from the receipt incurrence or accrual payment of any indemnity 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 hereunder 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 deductibility amount received by the Indemnified Party, net of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable expenses incurred by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that Indemnified Party in collecting such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryamount.
(b) No indemnified party shall be entitled Each Indemnified Party must mitigate to the extent required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) business days after the benefit is received.
(c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 13.01(a4.1 and the Indemnified Party could have recovered all or a part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment.
(d) The Assignor (including any officer or director of Pequod) shall not have any right of contribution, indemnification or right of advancement from Pequod or the Assignee with respect to any Loss that has been taken account claimed by an Indemnified Party. The Assignor shall not make any claim for monetary damages or indemnification against either Pequod or the Assignee or any of in their respective Affiliates with respect to any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced claim properly brought by recovery, settlement an Assignee Indemnified Party under this Article IV or otherwise under or pursuant relating to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified partythis Agreement, the amount of such reduction, less any costs, expenses, premiums Promissory Note or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsTransactions.
Appears in 1 contract
Calculation of Losses. (a) The amount of All Losses that any Loss for which indemnified party is entitled to indemnification is provided in clause under this Article XI shall be calculated after giving effect to: (i)) any proceeds actually received from insurance policies covering the damage, loss, liability or expense that is the subject to the claim for indemnity, (ii)) any proceeds actually received from third parties, including through indemnification, counterclaim, reimbursement arrangement, contract or otherwise in compensation for the subject matter of an indemnification claim by such indemnified party, and (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (iiiv) reduced to take account of any net Tax Benefit (as defined benefit actually realized in cash, credit or a reduction of Taxes otherwise payable in the ATCAyear in which such Loss was incurred (or in a prior year) realized by the indemnified party arising from the deductibility incurrence or payment of any such LossLoss (such arrangements referenced in clauses (i), (ii), (iii) and (iv), collectively, “Alternative Arrangements”) net of any reasonable out-of-pocket expenses incurred by such indemnified party in collecting such amount. In computing the amount of any such Tax cost or Tax Benefitbenefit referred to in the foregoing sentence, 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified LossLosses. Any Without limiting clause (iii) or (iv), the taking of a Tax deduction in connection with any such damage, loss, liability or expense that is subject to a claim for indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after at the indemnified party has actually realized such cost or benefit. For purposes discretion of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No Following the Closing, Sellers, Purchaser, the Bank and its Subsidiaries shall utilize their commercially reasonable best efforts, consistent with normal practices and policies and good commercial practice, to mitigate any amounts payable under Section 11.2, including pursuing all reasonable remedies to collect any proceeds pursuant to Alternative Arrangements covering the Loss that is the subject to the claim for indemnity (provided that the indemnified party shall not be entitled required to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party institute a lawsuit in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.any Alternative
Appears in 1 contract
Sources: Stock Purchase Agreement (Capital One Financial Corp)
Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article X shall be net of any amounts actually recovered or recoverable by the indemnified party under insurance policies (provided that any increased insurance premium resulting from payment of such amounts shall be deemed to be Losses) or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery).
(b) If the amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies Article X gives rise to a currently realizable Tax Benefit (as such term is defined in below) to the ATCA) with respect to such Loss; providedIndemnified Party making the claim, however, that then the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement indemnity claim shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. To the extent such indemnity claim does not give rise to a currently realizable Tax Benefit, if the amount with respect to which any indemnity claim is made gives rise to a subsequently realized Tax Benefit to the indemnified party that made the claim, such indemnified party shall refund to the indemnifying party the amount of such Tax Benefit (with and including any gross-up payment made pursuant to this Section 10.9 with respect to such Tax Benefit) when, as and if realized (it being understood that such indemnified party shall use its reasonable efforts to realize such Tax Benefit). For purposes of this Section 10.9, a "Tax Benefit" means an amount by which the Tax liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this AgreementSection 10.9, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit is "currently realizable" to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would Tax Benefit can be required realized in the current taxable period or year or in any tax return with respect thereto (including through a carryback to pay but for a prior taxable period) or in any taxable period or year prior to the receipt or accrual date of the indemnity payment or the deductibility of such Loss, as the case may beclaim. The amount of any increase increase, reduction or reduction payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 870-AD or successor form) with respect to the indemnified party’s 's liability for Taxes, and payments between the indemnified party and the indemnifying party parties to this Agreement to reflect such adjustment shall be made if necessary.
(b) No indemnified party . Any indemnity payment under this Article X shall be entitled treated as an adjustment to indemnification pursuant to Section 13.01(athe value of the asset upon which the underlying claim was based, unless a final determination (which shall include the execution of a Form 870-AD or successor form) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party or any of its Affiliates causes any such payment not to be treated as an adjustment to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights value of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsasset for United States federal income tax purposes.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article VIII shall be net of any amounts actually recovered by the indemnified party Indemnified Person under the True Insurance Policies (as such term is defined in the ATCA) insurance policies with respect to such Loss; provided, however, that Losses (net of any expenses incurred in connection with such recovery).
(b) If the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant under this Article VIII gives rise to Section 13.01(aa currently realizable Tax Benefit (as defined below) or Section 13.02(a) of this Agreement to the Indemnified Person, then the Claim shall be (i) increased to take account of any net Tax cost incurred by the indemnified party Indemnified Person arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party Indemnified Person arising from the deductibility incurrence or payment of any such Loss. To the extent such Claim does not give rise to a currently realizable Tax Benefit, if the amount with respect to which any Claim is made gives rise to a subsequently realized Tax Benefit to the Indemnified Person, such Indemnified Person shall refund to the Indemnifying Person the amount of such Tax Benefit (with and including any gross-up payment made pursuant to this Section 8.7 with respect to such Tax Benefit) when, as and if realized. As used herein, a “Tax Benefit” means an amount by which the Tax liability of a Person (or group of Persons) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax cost or Tax Benefit, the indemnified party Indemnified Person shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this AgreementSection 8.7, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit is “currently realizable” to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required Tax Benefit is realized in the current taxable period or year or in any Tax Return with respect thereto (including through a carryback to pay but for a prior taxable period) or in any taxable period or year prior to the receipt or accrual date of the indemnity payment or the deductibility of such Loss, as the case may beClaim. The amount of any increase increase, reduction or reduction payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified partyIndemnified Person’s liability for Taxes, and payments between the indemnified party Buyer and the indemnifying party Sellers to this Agreement to reflect such adjustment shall be made if necessary.
(b) No indemnified party . Any indemnity payment under this Article VIII shall be entitled treated as an adjustment to indemnification pursuant to Section 13.01(a) the value of the asset upon which the underlying Claim was based, unless a final determination with respect to the Indemnified Person or any Loss that has been taken account of in its Affiliates causes any such payment not to be treated as an adjustment pursuant to Section 1.05 the value of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment asset for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsUnited States federal income tax purposes.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which subject to indemnification is provided in clause (i), (ii), (iii), (iv) hereunder or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement any claim therefor shall be calculated net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies, indemnities or other reimbursement arrangements with respect to such LossLosses, less the costs of collection, deductible or retention amounts, and any related increases in insurance costs or premiums caused as a result of such claim. If Losses are covered by insurance policies, the indemnified party will use commercially reasonable efforts to recover under such policies; provided, however, that the indemnified party shall not have any no obligation to seek any pursue litigation under such recovery under any True Insurance Policy. insurance policies, indemnities or other reimbursement arrangements.
(b) The amount of any Loss subject to indemnification hereunder or of any claim therefor shall be calculated net of any Tax benefit actually realized by the Acquiror Indemnified Party on account of such Loss on or before the close of the third (3rd) year after the year in which the Loss is incurred, calculated on a with and without basis. If the Acquiror Indemnified Party realizes any such Tax benefit after an indemnification payment is made in respect of such Losses, the Acquiror Indemnified Party shall promptly pay or cause to be paid to the indemnifying party the amount equal to such Tax benefit.
(c) In no event shall a party be entitled to recover or make a claim for any amounts in respect of diminution of value, damages based on multiples of earnings or revenue, consequential, special, incidental, opportunity cost or indirect damages or punitive damages except to the extent any such damages are actually paid or payable to third-parties.
(d) Each of the parties agrees to take all commercially reasonable steps to mitigate their respective Losses upon and after becoming aware of any event or condition which indemnification is provided would reasonably be expected to give rise to any Losses that are indemnifiable hereunder.
(e) In any case where an indemnified party recovers from third Persons (including any insurer) any amount in respect of a matter with respect to which an indemnifying party has indemnified it pursuant to Section 13.01(athis Article IX, such indemnified party shall promptly pay over to the indemnifying party the amount so recovered, but (x) or Section 13.02(a) not in excess of this Agreement shall be the sum of (i) increased to take account of any net Tax cost incurred amount previously so paid by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate on behalf of the indemnified party in respect of such matter and (ii) any amount expended by the indemnifiable Loss to which indemnifying party in pursuing or defending any claim arising out of such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsmatter.
Appears in 1 contract
Sources: Contribution Agreement (Cybin Inc.)
Calculation of Losses. (a) The amount Any determination of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Losses shall be net of a reasonable estimate of the value of any amounts actually recovered Tax benefits realizable by the indemnified party under Indemnified Party by reason of the True facts and circumstances giving rise to the claim for indemnification. The calculation of Losses shall be net of the amount of any insurance proceeds (other than proceeds from the R&W Insurance Policies (as such term is defined in Policy) recoverable by the ATCA) Indemnified Party with respect to such Loss; provided, however, that the indemnified party Losses. The calculation of Losses shall not have include damages arising because of a change after the Closing in Law or accounting policy. To the extent that a claim for indemnification by Buyer hereunder relates to a liability incurred by Seller and there is an accrual on the Closing Balance Sheet in respect of such liability, then the determination of Losses in respect of such Claim shall be net of such accrual. In the event that Buyer, Seller, Parent or any obligation other Indemnified Party receives a payment in reimbursement or otherwise in respect of a Loss from a third party as to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant an Indemnifying Party has previously made a payment to Section 13.01(a) or Section 13.02(aan Indemnified Party hereunder, the applicable Indemnified Party shall promptly pay over to the applicable Indemnifying Parties their proportionate share (based on the amounts paid by the Indemnifying Parties) of this Agreement shall be such amount received from the third party (i) increased to take account net of any net Tax cost reasonable expenses incurred by the indemnified party arising from the receipt or accrual Indemnified Party in obtaining such payment). The Indemnified Parties shall take all reasonable steps to mitigate any Losses in respect of indemnity payments hereunder (grossed up for such increase) and (ii) reduced a claim that is subject to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility of any such Lossindemnification hereunder. 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, event an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of Indemnifying Party makes any payment for indemnification pursuant in respect of Losses under this Article 6 to Section 13.01(a) or 13.02(a)an Indemnified Party, is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate such Indemnifying Party shall have a right of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) subrogation against any third party that is as to which the Indemnified Party could recover some or all of such Losses so as to permit the Indemnifying Party to recover the amount of its indemnification payment hereunder. Any determination of Losses hereunder shall not an affiliate of the indemnified party include any amount in respect of the indemnifiable Loss to consequential, indirect, or incidental damages, including, without limitation, lost profits or Losses based on multipliers of Seller earnings or profits or otherwise in respect of a diminution value of Seller, all of which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsare hereby excluded.
Appears in 1 contract
Sources: Asset Purchase Agreement (Core Molding Technologies Inc)
Calculation of Losses. (a) The amount of any Loss Damages for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article 8 shall be net of any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies or otherwise with respect to such Loss; providedDamages (net of any Tax or expenses incurred in connection with such recovery). The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies for any Damages. If the Indemnifying Parties pay indemnity Damages under this Agreement, howeverand the Indemnified Parties subsequently receive insurance proceeds for the same claim or event, then the Indemnified Parties shall refund such indemnity Damage payments to the Indemnifying Parties from such insurance proceeds to the extent that the indemnified party shall not have any obligation to seek any Indemnified Party has received benefits from both sources (i.e., payments of indemnity Damages from the Indemnifying Party and such recovery under any True Insurance Policy. The insurance proceeds) in excess of the amount of Damages incurred by the Indemnified Parties.
(b) If the amount of any Loss Damages for which indemnification is provided pursuant under this Article 8 gives rise to Section 13.01(aa currently realizable Tax Benefit (as defined below) or Section 13.02(a) to the Indemnified Party making the Claim, then the amount of this Agreement Damages shall be (i) increased to take account of any net Tax cost incurred by the indemnified party Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) actually or reasonably expected to be realized by the indemnified party Indemnified Party arising from circumstances underlying or the deductibility incurrence or payment of any such LossDamages for all applicable Tax periods (past, present and future). For purposes of this Section 8.6(b), a “Tax Benefit” means an amount by which the Tax liability of the Party (or group of corporations including the Party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax cost or Tax Benefit, the indemnified party Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase increase, reduction or reduction payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 870-AD or successor form) with respect to the indemnified partyIndemnified Party’s liability for Taxes, and payments between the indemnified party and the indemnifying party parties to this Agreement to reflect such adjustment shall be made if necessary.
(b) No indemnified party . Any indemnity payment under this Article 8 shall be entitled treated as an adjustment to indemnification pursuant to Section 13.01(athe Purchase Price, unless a final determination (which shall include the execution of a Form 870-AD or successor form) with respect to the Indemnified Party or any Loss that has been taken account of in its Affiliates causes any such payment not to be treated as an adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment Purchase Price for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsUnited States federal income tax purposes.
Appears in 1 contract
Sources: Stock Purchase Agreement (North Pointe Holdings Corp)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article IX shall be net of any amounts (i) actually recovered by any Indemnified Party under insurance policies or any other source of indemnification with respect to such Loss including the indemnified party under Alternative Arrangements, and (ii) accrued on the True Insurance Policies (balance sheet of each of the PEP Companies as such term is defined of the Closing Date and taken into account in the ATCA) calculation of the Purchase Price with respect to such Loss; provided, however, that and shall be reduced to take into account any Tax Benefit.
(b) In determining the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any indemnification payment for a Loss for which indemnification is provided pursuant to Section 13.01(a) suffered or Section 13.02(a) incurred by an Indemnified Party hereunder, the amount of this Agreement such Loss shall be (i) increased decreased to take into account of any net Tax cost incurred by the indemnified party arising from the receipt deduction, credit or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) other tax benefit actually realized by the indemnified party arising from the deductibility of any Indemnified Party with respect to such LossLoss (“Tax Benefits”). In computing the amount of any such Tax cost or Tax Benefit, the indemnified party 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 incurrence or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any ; provided, that, if a Tax Benefit is not realized in or prior to the taxable period during which an Indemnifying Party makes an indemnification payment hereunder or the Indemnified Party incurs or pays any Loss, the Indemnified Party shall initially be made without regard thereafter make payments to clauses (i) and (ii) in the second sentence Indemnifying Party at the end of this Section 13.03, and shall be increased or reduced each subsequent taxable period to reflect any such net Tax cost (including gross-up) or net the Tax Benefit only after the indemnified party has actually realized in each such cost or benefitsubsequent taxable period. For purposes of this Agreementclarity, an indemnified a Tax Benefit shall be treated as realized when it is actually realized or when it is available to be realized through reasonable best efforts taken by the relevant party.
(c) Each Purchaser Indemnified party shall be deemed use reasonable best efforts to have “actually realized” a net Tax cost or a net Tax Benefit to the extent thatmake any claims for insurance, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor formindemnification and/or other amounts available from third party(ies) with respect to Losses for which it will seek indemnification hereunder and to diligently pursue such claims in good faith. If any such insurance proceeds, indemnification and/or other amounts are received or realized by a Purchaser Indemnified Party after payment by the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party Seller of any amount otherwise required to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled paid to indemnification a Purchaser Indemnified Party pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of this Article IX, the Maleic Agreement. If the amount of any Loss, at any time subsequent Purchaser Indemnified Party shall repay to the making of any payment for Seller, promptly after receiving or realizing such insurance proceeds, indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any and/or other person that is not an affiliate of the indemnified partyamounts, the amount of that the Seller would not have had to pay pursuant to this Article IX had such reductioninsurance proceeds, less any costs, expenses, premiums indemnification and/or other amounts been received or other offsets incurred in connection therewith, shall promptly be repaid realized by the indemnified party Purchaser Indemnified Party prior to the indemnifying party. Upon making any Seller’s payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsthis Article IX.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nn Inc)
Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article X shall be net of any amounts actually recovered or --------- recoverable by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery).
(b) If the amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies Article X gives rise to a currently realizable Tax benefit --------- (as such term is defined in below) to the ATCA) with respect to such Loss; providedIndemnified Party making the claim, however, that then the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement indemnity claim shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. To the extent such indemnity claim does not give rise to a currently realizable Tax benefit, if the amount with respect to which any indemnity claim is made gives rise to a subsequently realized Tax benefit to the indemnified party that made the claim, such indemnified party shall refund to the indemnifying party the amount of such Tax benefit (with and including any gross-up payment made pursuant to this Section 10.6 with respect to such Tax ------------ benefit) when, as and if realized (it being understood that such indemnified party shall use its reasonable efforts to realize such Tax benefit). For purposes of this Section 10.6, a "Tax benefit" means an amount by which the Tax ------------ ----------- liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Tax Authority. In computing the amount of any such Tax cost or Tax Benefitbenefit, 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 or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this AgreementSection 10.6, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit benefit is "currently realizable" to the extent that, and at that ------------- --------------------- such time as, Tax benefit can be realized in the amount of Taxes payable by such indemnified party is increased above current taxable period or reduced below, as year or in any Tax Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual date of the indemnity payment or the deductibility of such Loss, as the case may beclaim. The amount of any increase increase, reduction or reduction payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 870-AD or successor form) with respect to the indemnified party’s 's liability for Taxes, and payments between the indemnified party and the indemnifying party parties to this Agreement to reflect such adjustment shall be made if necessary.
(b) No indemnified party . Any indemnity payment under this Article X shall be entitled treated as an adjustment to indemnification pursuant to Section 13.01(athe value of the asset --------- upon which the underlying claim was based, unless a final determination (which shall include the execution of a Form 870-AD or successor form) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party or any of its Affiliates causes any such payment not to be treated as an adjustment to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights value of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsasset for United States federal income tax purposes.
Appears in 1 contract
Sources: Asset Purchase Agreement (Agway Inc)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of Losses payable under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article XIV by the Indemnifying Party shall be net of any (i) amounts actually recovered by the indemnified party Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor, in each case, net of any expenses reasonably incurred by such Indemnified Party in collecting such amounts (including, to the True Insurance Policies (as such term is defined in the ATCA) with respect extent applicable, any applicable deductible, reasonable costs of collection or increases to premiums directly attributable to such Loss; providedclaims for Losses), however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net the Tax Benefit (as defined in the ATCA) benefits actually realized by the indemnified party Indemnified Party (that is a permanent benefit and not a timing benefit) arising from the deductibility incurrence or payment of any such LossLosses in the year of such Loss or the subsequent two (2) years. In computing 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 reasonably incurred by such Tax cost or Tax BenefitIndemnified Party in collecting such amount (including, 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent thatapplicable, and at any applicable deductible, reasonable costs of collection or increases to premiums directly attributable to such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but claims for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may beLosses). The amount of Indemnified Party shall use Reasonable Efforts to collect any increase amounts available under such insurance coverage or reduction hereunder shall be adjusted from such other party alleged to reflect have responsibility therefor prior to making any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability claim for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryindemnification under this Article XIV.
(b) No indemnified party The Indemnifying Party shall not be entitled liable under this Article XIV for any (i) Losses relating to indemnification any matter to the extent that it is included in the calculation of Closing Indebtedness as finally determined pursuant to Section 13.01(a2.7 or there is included in the Closing Purchase Price Adjustment Schedule as finally determined pursuant to Section 2.7 a specific liability or reserve relating to such matter, (ii) Losses that are for consequential (other than for reasonably foreseeable consequential damages), incidental (other than for reasonably foreseeable incidental damages), indirect or punitive damages (other than with respect to Third Party Claims), (iii) Losses for lost profits which are not reasonably foreseeable, or (iv) Losses based upon any Loss that has been taken account multiplier of Meritas’ or Chengdu’s earnings, including, without limitation, earnings before interest, tax, depreciation or amortization or any other valuation metric.
(c) The Indemnified Parties shall take, and shall cause their respective Affiliates to take, all reasonable steps in any adjustment pursuant accordance with applicable Law to Section 1.05 mitigate their Losses upon and after becoming aware of the Maleic Agreement. existence of such Losses.
(d) If the amount Indemnified Party receives any payment from an Indemnifying Party in respect of any LossLosses and the Indemnified Party could have recovered all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, at any time subsequent the Indemnified Party shall assign such rights to proceed against such third party as are necessary to permit the making of any payment for indemnification pursuant Indemnifying Party to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant attempt to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, recover from such third party the amount of such reductionindemnification payment; provided that no Indemnified Party shall be required to assign such rights if such third party is an employee, less client, supplier or tuition payer of the Indemnified Party so long as the Indemnified Party pursues recovery against such third party and transfers any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid proceeds recovered by the indemnified party Indemnified Party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsIndemnifying Party.
Appears in 1 contract
Sources: Transaction Agreement (Nord Anglia Education, Inc.)
Calculation of Losses. (ai) The Subject to Section 18(d)(ii), the amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of under Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a18(a) or Section 13.02(a18(b) of this Agreement shall be (iA) increased to take account of any net Tax tax cost incurred by the indemnified party Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) ), and (iiB) reduced to take account of any net Tax Benefit (as defined in the ATCA) tax benefit immediately realized by the indemnified party Indemnified Party in cash arising from the deductibility incurrence or payment of any such LossLosses. In computing the amount of any such Tax tax cost or Tax Benefittax benefit, the indemnified party Indemnified Party shall be deemed to recognize all other items of income, gain, loss, loss deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder under Section 18(a) or Section 19(b) or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and Losses.
(ii) in the second sentence The amount of this Losses recoverable by an Indemnified Party under Section 13.03, and 18(a) or Section 18(b) shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, by the amount of Taxes payable any payment received from an insurance carrier or other third-party indemnitor by such indemnified party is increased above Indemnified Party (or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor forman Affiliate thereof) with respect to the indemnified party’s liability Losses to which such claim for Taxesindemnification relates, net of the cost of collection and payments between any increase in insurance cost resulting from such recovery. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Losses for which it has already received an indemnification or other third-party indemnity payment from the indemnified party and Indemnifying Party, it shall pay to the indemnifying party Indemnifying Party (as defined below), within thirty (30) days of receiving such insurance payment, an amount equal to reflect such adjustment shall be made if necessary.
the excess of (bA) No indemnified party shall be entitled to indemnification pursuant to the amount previously received by the Indemnified Party under Section 13.01(a18(a) or Section 18(b), as applicable, with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If such claim plus the amount of any Lossthe insurance payments directly related to such claim received by the Indemnified Party, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(aover (B) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of Losses with respect to such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by claim which the indemnified party Indemnified Party has become entitled to the indemnifying party. Upon making any payment for indemnification pursuant to receive under Section 13.01(a18(a) or 13.02(aSection 18(b), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsas applicable.
Appears in 1 contract
Sources: Manufacturing Services Agreement (Nabi Biopharmaceuticals)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Losses payable under Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement 4.1 by the Indemnifying Party shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred amounts recovered or recoverable by the indemnified party arising Indemnified Party under applicable insurance policies or from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) any other person alleged to be responsible therefor, and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) tax benefit realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such LossLosses 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 cost or Tax Benefittax benefit, the indemnified party Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item items arising from the receipt incurrence or accrual payment of any indemnity 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 hereunder 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 deductibility amount received by the Indemnified Party, net of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable expenses incurred by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that Indemnified Party in collecting such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryamount.
(b) No indemnified party shall be entitled Each Indemnified Party must mitigate to the extent required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) business days after the benefit is received.
(c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 13.01(a4.1 and the Indemnified Party could have recovered all or a part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment.
(d) The Assignor (including any officer or director of Expanse) shall not have any right of contribution, indemnification or right of advancement from Expanse or the Assignee with respect to any Loss that has been taken account claimed by an Indemnified Party. The Assignor shall not make any claim for monetary damages or indemnification against either Expanse or the Assignee or any of in their respective Affiliates with respect to any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced claim properly brought by recovery, settlement an Assignee Indemnified Party under this Article IV or otherwise under or pursuant relating to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified partythis Agreement, the amount of such reduction, less any costs, expenses, premiums Promissory Note or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsTransactions.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Indemnifiable Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article X shall be (a) net of any amounts actually recovered by the indemnified party Indemnified Party under insurance policies with respect to such Indemnifiable Loss (including to the extent such Indemnifiable Loss is reinsured by OneBeacon, Liberty or any of their respective Affiliates under the True Insurance Policies Indemnity Reinsurance Agreements) PROVIDED, that the Indemnified Party shall use commercially reasonable best efforts to collect the claim proceeds under such insurance policies with respect to such Indemnifiable Loss prior to seeking indemnification for such Indemnified Loss under this Article X and (as such term is defined in the ATCAb) with respect to such Loss; providedthis Agreement, howeverthe License Agreements, that the indemnified party shall not have Transition Services Agreement and the Imaging Transition Services Agreement, net of any obligation damages recovered with respect to seek any such recovery Indemnifiable Losses arising from the same occurrence under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement such agreements, and shall be (i) increased to take account of any net Tax cost incurred by the indemnified party Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such Indemnifiable Loss. In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party Indemnified Party shall be deemed to recognize all other items of income, gain, loss, loss deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Indemnifiable Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 1 contract
Sources: Master Agreement (White Mountains Insurance Group LTD)
Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article X shall be calculated (a) net of any duplicative amounts actually recovered by the indemnified party any Indemnitee under the True Insurance Policies (as such term is defined in the ATCA) insurance policies or from third Persons with respect to such Losses; (b) net of any Tax Benefit incurring to any Indemnitee on account of such Loss. If an Indemnitee receives an amount under insurance coverage or from a third party with respect to Losses that have been satisfied by a release of any of the Escrow Funds, then such Indemnitee shall promptly deposit such amount (up to the amount of the Escrow Funds released for such purpose) into the Escrow Account and such amount shall be part of the Escrow Funds thereafter; provided, however, that the indemnified party than an Indemnitee shall not have be required to deposit into the Escrow Account any obligation released Escrow Funds to seek the extent such funds are released to cover the uninsured portion of any such recovery Losses otherwise indemnifiable under any True Insurance Policy. this Article X. The amount of any Loss Losses for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of under this Agreement Article X initially shall be (i) increased determined without regard to take account any Tax Benefit. However, to the extent that the Indemnitee recognizes a Tax Benefit with respect to any payment for Losses made hereunder, such Indemnitee shall pay to the Indemnitor the amount of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined but not in excess of the ATCA) realized by the indemnified party arising indemnification payment or payments actually received from the deductibility of any Indemnitor with respect to such Loss. In Losses) at such time or times as and to the extent that the Indemnitee actually realizes such Tax Benefit through an actual reduction in Tax paid, calculated by computing the amount of Taxes before and after inclusion of any Tax items attributable to such Losses for which indemnification was made and treating such Tax cost items as the last items claimed for any taxable period; provided that, if any subsequent Tax adjustments are made relating to the Indemnitee for any taxable period as a result of 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 or accrual in settlement of any indemnity payment hereunder audit or other administrative proceeding that results in any change in the deductibility amount of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent thatIndemnitee, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would appropriate payments will be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments made between the indemnified party Indemnitor and the indemnifying party Indemnitee to properly reflect such adjustment shall be made if necessaryamount.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Macquarie Infrastructure CO LLC)
Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article X shall be reduced by, and the indemnified party shall remain legally responsible for, such Losses to the extent, following use of commercially reasonable efforts, the indemnified party actually recovers such Losses under insurance policies or otherwise (net of any Tax or expenses incurred in connection with such recovery and of any increase in premiums as a result of such recovery). Additionally, the indemnified party waives its rights of recovery against the indemnifying party to the extent of the amount paid under any insurance policy for Losses, if such waiver is allowed under such insurance policy. If an indemnified party recovers under insurance policies or otherwise in respect of a Loss subject to indemnification hereunder after payment has been made by the indemnifying party, then the indemnified party shall reimburse the indemnifying party for amounts actually recovered it has paid to the indemnified party in respect of such Loss to the extent that the aggregate amounts received by the indemnified party under such insurance policies or otherwise (net of any Tax or expenses incurred in connection with such recovery and of any increase in premiums as a result of such recovery) and from the True Insurance Policies (as indemnifying party in respect of such term is defined in Loss exceed the ATCA) with respect to amount of such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. .
(b) The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement Indemnification Claim shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase, if any) in the event that the tax treatment of such indemnity payment prescribed by Section 10.8 is not permitted by applicable Law and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized currently realizable by the indemnified party arising from the deductibility incurrence or payment of any such Loss. In computing To the extent such Indemnification Claim does not give rise to a currently realizable Tax Benefit, if the amount with respect to which any Indemnification Claim is made gives rise to a subsequently realized Tax Benefit to the indemnified party that made the Indemnification Claim, such indemnified party shall refund to the indemnifying party the amount of any such Tax cost or Benefit (grossed-up to reflect any Tax Benefit, Benefit currently realized by the indemnified party shall be deemed to recognize all other items as a result of incomemaking such refund payment) when, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses as and if realized (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any it being understood that such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized shall use its commercially reasonable efforts to realize such cost or benefitTax Benefit). For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.10.6,
Appears in 1 contract
Sources: Asset Purchase Agreement
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause to any Indemnified Party pursuant to this Article VIII shall be calculated giving effect to (net of) (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by such Indemnified Party under any insurance policies with respect to such Loss or from any third-party; (ii) any amounts accrued or reserved for on the indemnified party under Company Financial Statements; and (iii) the True Insurance Policies amount of any Tax benefits actually realized by such Indemnified Party (as such term is defined in the ATCAor its affiliates) with respect to such Loss; providedLoss (each, however, that a “Loss Reduction Amount”). If the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss incurred by an Indemnified Party for which an indemnification payment has been made at any time prior to the final distribution of the Escrow Account is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred reduced by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility of any such Loss. In computing a Loss Reduction Amount, the amount of such Loss Reduction Amount (less any such Tax cost costs, expenses or Tax Benefitpremiums incurred in connection therewith) shall promptly be repaid by the Indemnified Party to the Indemnifying Party. For the avoidance of doubt, 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) parties acknowledge and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, agree that an indemnified party Indemnified Party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party Indemnified Party is increased above or reduced below, as the case may be, below the amount of Taxes, Taxes that such indemnified party Indemnified Party would be required to pay but for the receipt incurrence or accrual of the indemnity payment or the deductibility of such Lossindemnified amount, as the case may be. The amount of any increase taking into account all other expenses, deductions or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect credits prior to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any indemnifiable Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a)a full indemnity payment, the indemnifying party Indemnifying Party shall, to the extent of such indemnity payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) Indemnified Party against any third party that is not an affiliate of the indemnified third-party in respect of the indemnifiable Loss to which such the indemnity payment relates. Each The Company Indemnifying Parties shall not have any obligation to indemnify any Parent Indemnified Party for any Loss, to the extent such indemnified Loss was included as a Liability in the calculation of the Net Merger Consideration pursuant to Article II as reflected on the Final Allocation Schedule.
(b) Notwithstanding anything to the contrary elsewhere in this Agreement and except with respect to Loss arising due to fraud (which remedy shall be limited to any Persons who committed such fraud), neither Parent nor the Company Indemnifying Parties (or any of their respective Affiliates) shall, in any event, be obligated to indemnify any Parent Indemnified Party or any Company Indemnified Party, as the case may be, for any (i) consequential, incidental or special damages (including, multiple-based damages, loss of future revenue or income, loss of business reputation or opportunity, diminution in value, business interruption, or cost of capital), or (ii) punitive or exemplary damages, except to the extent that any Third-Party Claim for which a party seeks indemnification under this Article VIII includes such damages (together, “Special Damages”).
(c) Nothing in this Agreement shall duly execute upon request all instruments reasonably necessary in any way restrict or limit the general obligation at law of an Indemnified Party to evidence and perfect mitigate any Loss which it may suffer or incur by reason of the above described subrogation rightsbreach by an Indemnifying Party of any representation, warranty or covenant hereunder.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of Losses payable under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article X by the Indemnifying Party shall be net of any amounts actually recovered by the indemnified party Indemnified Party under applicable insurance policies in respect of such Loss, in each case net of costs and expenses incurred by such Indemnified Party or its Affiliates in procuring such recovery and any retro-premium obligations, increases in premiums or premium adjustments, deductibles incurred or other obligations associated therewith. If the True Insurance Policies (as such term is defined in the ATCA) Indemnified Party actually receives any amounts under applicable insurance policies with respect to such Loss; provided, howeversubsequent to an indemnification payment by the Indemnifying Party, that then such Indemnified Party shall promptly reimburse the indemnified party shall not have Indemnifying Party for any obligation indemnification payment actually made to seek any such Indemnified Party by such Indemnifying Party in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, in each case, net of costs and expenses incurred by such Indemnified Party or its Affiliates in procuring such recovery under and any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including grossretro-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessarypremium obligations associated therewith.
(b) No indemnified party The Indemnifying Party shall not be entitled liable under Article IX or this Article X for any Losses relating to any matter to the extent that there was included in the Closing Date Balance Sheet a specific liability or reserve relating to such matter or such item was included as a “Current Liability” in the calculation of Closing Date Net Working Capital (or such amount was included in the calculation of Closing Company Debt or Company Transaction Expenses).
(c) From and after the Closing, none of the Securities Holders Representative or any Securities Holder shall seek, or have any right to seek, indemnification pursuant to Section 13.01(a) or contribution from the Surviving Corporation or any of its Subsidiaries with respect to any Loss that has been taken account of in action, suit, proceeding, complaint, claim or demand brought by any adjustment Parent Indemnified Party (whether such action, suit, proceeding, complaint, claim or demand is pursuant to Section 1.05 this Agreement for any amount for which such Securities Holders Representative or Securities Holder is otherwise responsible pursuant to this Agreement, applicable law or otherwise).
(d) The Indemnified Parties shall use Reasonable Efforts to take any actions required by Law to mitigate their Losses which are indemnifiable hereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, solely for purposes of the Maleic Agreement. If determining the amount of any LossLosses that are subject to indemnification hereunder with respect to any claim (but not for purposes determining whether there has been a breach of any provision of this Agreement in connection with such claim), at any time subsequent each representation, warranty and covenant in this Agreement shall be read without regard and without giving effect to the making of any payment for indemnification pursuant to Section 13.01(aterm(s) “material” or 13.02(a)“Material Adverse Effect” or similar qualifiers as if such words were deleted from such representation, is reduced by recovery, settlement warranty or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightscovenant.
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in under clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a7.02(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a7.03(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies insurance policies (as such term is defined after reduction for any costs or expenses incurred in the ATCAconnection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect to such Loss; provided, however, . Each of the parties hereto acknowledges and agrees that neither the indemnified party Seller nor the Purchaser shall not have any obligation to seek maintain insurance except as required under the Supply Agreement or be obligated to have to resort to litigation against insurance carriers in order to pursue any such recovery under any True Insurance Policy. insurance claims.
(b) The amount of any Loss for which indemnification is provided pursuant to under clause (i) of Section 13.01(a7.02(a) or Section 13.02(aclause (i) of this Agreement Section 7.03(a) shall be (ia) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (iib) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit immediately realized by the indemnified party in cash arising from the deductibility incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, loss deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder under clause (i) of Section 7.02(a) or clause (i) of Section 7.03(a) or the deductibility incurrence or payment of any indemnified Loss. Any indemnification indemnity payment hereunder shall initially be made without regard to clauses under clause (i) and of Section 7.02(a) or clause (iii) in the second sentence of this Section 13.03, and 7.03(a) shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, treated as an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit adjustment to the extent thatPurchase Price for Tax purposes, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any unless a final determination (which shall include the execution of a Form 870 870-AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to or any Loss that has been taken account of in its Affiliates causes any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each not to be treated as an adjustment to such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsprice for federal income Tax purposes.
Appears in 1 contract
Sources: Asset Purchase Agreement (King Pharmaceuticals Inc)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of Losses payable under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered ARTICLE XI by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party Indemnifying Party shall not have take into account any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased amounts recovered under applicable insurance policies or from any other Person alleged to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) be responsible therefor and (ii) reduced to take account of any net the Tax Benefit (as defined in the ATCA) realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such Loss. In computing the amount Losses and (iii) any Tax payable as a result 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 or accrual of any indemnity payment hereunder hereunder. If the Indemnified Party actually 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 deductibility 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 indemnified Lossexpenses incurred by such Indemnified Party in collecting such amount. Any indemnification payment hereunder The Indemnified Party shall initially be made without regard use commercially reasonable efforts to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased collect any amounts available under such insurance coverage or reduced to reflect any from such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified other party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed alleged to have “actually realized” a net Tax cost or a net Tax Benefit responsibility therefor prior to making any claim for indemnification under this ARTICLE XI to the extent that, and at recovery under such time as, the amount of Taxes payable by coverage or from such indemnified other party is increased above or reduced below, as the case may be, the amount of Taxesreasonably likely to be successful; provided, that such indemnified party would the Indemnified Party shall not be required to pay but institute any suit, claim or action to collect any such amounts as a condition to making any claim for indemnification under this ARTICLE XI. If an Indemnified Party receives an amount under insurance coverage or from such other party subsequent to any indemnification provided by an Indemnifying Party, then such Indemnified Party shall promptly reimburse the receipt or accrual of Indemnifying Party for amounts paid by the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryIndemnifying Party.
(b) No indemnified party The Indemnifying Party shall not be entitled liable under this ARTICLE XI for any (i) Losses relating to any matter to the extent that (A) a specific liability or reserve relating to such matter in an amount adequate to cover all Losses related to such matter is identified on SCHEDULE 11.8(B), other than, for the avoidance of doubt, matters that are subject to indemnification under SECTION 11.4(VII) or (B) the Indemnified Party had otherwise been adequately compensated for such matter in a readily identifiable manner pursuant to Section 13.01(athe Closing Date Payment adjustment under SECTION 2.2, (ii) Losses that are for punitive damages, (iii) Losses for lost profits or (iv) Losses based upon any multiplier of the Acquired Companies' earnings, including, without limitation, earnings before interest, tax, depreciation or amortization or any similar valuation metric, in each case under clauses (ii), (iii) and (iv), other than with respect to any Loss a claim for punitive damages, lost profits or based on such a multiplier that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. is recovered by a third party.
(c) If the amount Indemnified Party receives any payment from an Indemnifying Party in respect of any LossLosses and the Indemnified Party could have recovered all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, at any time subsequent the Indemnified Party shall assign such of its rights to proceed against such third party as are necessary to permit the making of any payment for indemnification pursuant Indemnifying Party to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, recover from such third party the amount of such reductionindemnification payment.
(d) The Indemnified Parties shall use, less any costsand shall cause their respective Affiliates to use, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party commercially reasonable efforts to mitigate and otherwise minimize their Losses to the indemnifying party. Upon making maximum extent reasonably possible upon and after becoming aware of any payment for indemnification pursuant event which would reasonably be expected to Section 13.01(a) or 13.02(a), the indemnifying party shall, give rise to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsLosses.
Appears in 1 contract
Calculation of Losses. (a) Nothing in this Agreement in any way restricts or limits the general obligation under applicable Law of an indemnified party to use commercially reasonable efforts to mitigate any Loss that it may suffer or incur by reason of the breach by an indemnified party of any representation, warranty, covenant or obligation of such indemnified party under this Agreement.
(b) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (ivunder Section 4.1(d) or Section (v)(Avii) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of (i) any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(aany indemnification by or indemnification agreement with any non-Affiliate third party and (ii) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred insurance proceeds actually received by the indemnified party arising from as an offset against such Losses, in each case with respect to the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to foregoing clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, deductibles, premiums or other offsets Taxes incurred in connection therewith. The indemnified party shall use commercially reasonable efforts to pursue recovery under applicable insurance policies (which, for the avoidance of doubt, shall promptly be repaid by not require the indemnified party to commence or pursue a proceeding in connection therewith). Notwithstanding the foregoing, nothing in this Section 4.5 shall be construed or interpreted as a guarantee of any level or amount of insurance recovery with respect to any Losses hereunder or as a requirement to obtain or maintain any insurance or to make any claim for insurance as a condition to any indemnification hereunder. In the event that the application of this Section 4.5 to any Losses following the time that an indemnification payment has been made by an indemnifying party pursuant to Section 4.1(d) or Section (vii) with respect to such Losses would result in such indemnification payment being greater than the amount of Losses for which indemnification is provided under Section 4.1(d) or Section (vii), as applicable, the indemnified party shall promptly remit the excess payment to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a.
(c) or 13.02(a)Notwithstanding anything contained elsewhere in this Agreement, the indemnifying party shall, amount of any Losses subject to indemnification under this Section 4.5 shall not include any amount that was specifically taken into account in determining the extent of such payment, be subrogated to all rights amount of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsAdjustment Amount.
Appears in 1 contract
Sources: Membership Interest Purchase and Contribution Agreement (NRX Pharmaceuticals, Inc.)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i)under Section 10.1, (ii), (iii), (iv) 10.2 or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement 10.3 shall be net of any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies with respect to such Loss; providedLoss and of any amounts recovered pursuant to third-party indemnification agreements, howeveradjusted in accordance with Section 10.10(b) and characterized in accordance with Section 10.11. To the extent that indemnification for any Loss is provided under Sections 10.1, that 10.2 or 10.3 and subsequently amounts are recovered by the indemnified Indemnified Party under insurance policies with respect to such Loss or from any third party pursuant to third-party indemnification agreements, the Indemnified Party shall not have any obligation pay to seek any the Indemnifying Party all such recovery under any True Insurance Policy. The amounts recovered by the Indemnified Party promptly following the receipt of such amounts.
(b) To the extent provided herein, the amount of any Loss (including for which purposes of this Section 10.10(b), any liability for Taxes) that gives rise to an indemnification is provided payment pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (without duplication) (i) increased to take account of by any net Tax cost Taxes incurred by the indemnified party arising from Indemnified Party as a result of the receipt or accrual of the indemnity payments hereunder payment (grossed up for such increaseas increased pursuant to this Section 10.10(b) and (ii) reduced to take account the extent provided in this Section 10.10(b) by any decrease in Taxes as a result of any net Tax Benefit deduction or credit (as defined in the ATCAa "TAX BENEFIT") actually realized by the indemnified party arising Indemnified Party as a result of the event giving rise to the indemnity payment. If any such Tax Benefit is actually realized before the date of an indemnification payment, such indemnification payment shall be reduced to take into the account the reduction in the relevant Loss as a result of such Tax Benefit. If such Tax Benefit is actually realized after the date of an indemnification payment but before the end of fifth year following the year in which the relevant Loss occurred, the Indemnified Party shall promptly after such Tax Benefit is actually realized make a payment to the applicable Indemnifying Party to take into account the reduction in the relevant Loss as a result of such Tax Benefit, such payments by an Indemnified Party not to exceed the indemnification payments previously received by such Indemnified Party from the deductibility Indemnifying Party in respect of any such Loss. In computing If 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) ceiling set forth in the second last sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up10.7(a) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced belowSection 10.7(b), as the case may be, has been met, no further payments to the amount of Taxes, that such indemnified party would applicable Indemnifying Party described in the preceding sentence shall be required to pay but for the receipt or accrual of be made. A Tax Benefit that results from an event giving rise to the indemnity payment shall be considered actually realized by an Indemnified Party only to the extent that, but for such Tax Benefit, such Indemnified Party's Tax liability would be higher than it is with such Tax Benefit (e.g., deductions credits or losses of the deductibility Indemnified Party that do not result from the event giving rise to the indemnity 128 payment shall be deemed to be used prior to the use of any deduction, credit or loss that does result from the event giving rise to the indemnity payment). If a realized Tax Benefit that has been taken into account under this Section 10.10(b) is rendered unavailable by reason of a carryback of any Tax Benefit from a subsequent period, the Indemnifying Party shall make an appropriate reconciliation payment to the Indemnified Party, provided that the Indemnified Party shall be required to take such Loss, as previously realized Tax Benefit into account in accordance with this Section 10.10(b) without regard to the case may befive year limitation described above. The amount of any increase increase, reduction or reduction payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s Indemnified Party's liability for Taxes, and if necessary, payments shall be made between the indemnified party and the indemnifying party parties to this Agreement to reflect such adjustment adjustment. Determinations of any Tax Benefit or Tax cost relating to NBC and its Subsidiaries shall for purposes of this Section 10.10 be made using the NBC Standalone Tax Principles. No assignment (including any assignment of the NBC Shares) by any party shall increase the other party's obligations under this Section 10.10(b) other than by virtue of any reduction in the USH3 Common Equity Ratio or GE Common Equity Ratio. For purposes of applying this Section 10.10(b) to any indemnity for Taxes under Article 11, GE and Vivendi shall be made if necessarydeemed to be Indemnified Parties and Tax Benefits shall include any such benefits realized by their respective Subsidiaries.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Losses payable under Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement 9.02 by the Indemnifying Party shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred amounts recovered or recoverable by the indemnified party arising Indemnified Party under applicable insurance policies or from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) any other Person alleged to be responsible therefor, and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such LossLosses during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 9.02; 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 9.02 (but during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 9.02), 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 cost or Tax Benefitbenefit, the indemnified party Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item items arising from the receipt incurrence or accrual payment of any indemnity Losses for which indemnification is provided under Section 9.02. 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 hereunder 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 deductibility amount received by the Indemnified Party, net of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable expenses incurred by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that Indemnified Party in collecting such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryamount.
(b) No indemnified party shall be entitled The rights of the Purchaser Indemnified Parties to indemnification pursuant under Section 9.02 hereof shall not be affected by knowledge of any information acquired by such Purchaser Indemnified Party except to Section 13.01(a) with respect the extent such information was disclosed at the Purchaser’s written request and in writing to any Loss that has been taken account of the Purchaser or its Affiliates or representatives, in each case prior to the date hereof or expressly disclosed in any adjustment pursuant TEO Company Disclosure Document.
(c) Each Indemnified Party must mitigate to Section 1.05 of the Maleic extent required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the amount Indemnifying Party has paid the Indemnified Party under any indemnification provision of any Lossthis Agreement in respect of that loss, at any time subsequent the Indemnified Party must notify the Indemnifying Party and pay to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate Indemnifying Party the extent of the indemnified partyvalue of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) Business Days after the benefit is received.
(d) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage for any Losses payable under Section 9.02.
(e) For the avoidance of doubt, in calculating Losses incurred by any Purchaser Indemnified Party, regard should be had to the amount proportionate share of such reduction, less any costs, expenses, premiums or other offsets incurred the economic interest in connection therewith, shall promptly be repaid the TEO Companies represented by the indemnified party Shares and no Seller shall be obligated to indemnify the indemnifying party. Upon making any payment Purchaser Indemnified Parties for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, Losses to the extent of such payment, be subrogated to all rights of the indemnified party (suffered by any other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party Person in respect of such Person’s proportionate economic interest in the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsTEO Companies.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Losses payable under Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement 4.1 by the Indemnifying Party shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred amounts recovered or recoverable by the indemnified party arising Indemnified Party under applicable insurance policies or from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) any other person alleged to be responsible therefor, and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) tax benefit realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such LossLosses 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 cost or Tax Benefittax benefit, the indemnified party Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item items arising from the receipt incurrence or accrual payment of any indemnity 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 hereunder 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 deductibility amount received by the Indemnified Party, net of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable expenses incurred by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that Indemnified Party in collecting such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryamount.
(b) No indemnified party shall be entitled Each Indemnified Party must mitigate to the extent required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) business days after the benefit is received.
(c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 13.01(a4.1 and the Indemnified Party could have recovered all or a part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment.
(d) The Assignor (including any officer or director of Harpoon) shall not have any right of contribution, indemnification or right of advancement from Harpoon or the Assignee with respect to any Loss that has been taken account claimed by an Indemnified Party. The Assignor shall not make any claim for monetary damages or indemnification against either Harpoon or the Assignee or any of in their respective Affiliates with respect to any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced claim properly brought by recovery, settlement an Assignee Indemnified Party under this Article IV or otherwise under or pursuant relating to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified partythis Agreement, the amount of such reduction, less any costs, expenses, premiums Promissory Note or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsTransactions.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss Damages for which indemnification is provided in clause (i), (ii), (iii), (ivunder this Section 4.7 or Section 4.8(c) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement Damages and shall be (i) increased to take account of any net Tax cost incurred by the indemnified party Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such LossDamages, in each case calculated at the time of payment, using the characterization described below and assuming that all income and deductions bear (or relieve) Tax at an effective corporate rate based on the maximum marginal Federal rate and a state rate of 7.0%, taking into account the deductibility (if then allowed) of state tax from Federal taxable income. In computing the amount of any such Tax cost Any indemnity payment under this Section 4.7 or Tax Benefit, the indemnified party Section 4.8(c) shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, treated as an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit adjustment to the extent thatAdjusted Consideration for Tax purposes, and at such time asor as settlement of an obligation intended to be retained by the Company although paid by Buyer, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any unless a final determination (which shall include the execution of a Form 870 870-AD or successor form) with respect to the indemnified party’s liability Indemnified Party or any of its affiliates causes any such payment not to be treated as an adjustment to the Adjusted Consideration for TaxesUnited States Federal income tax purposes. If any Tax Agency asserts in writing during the examination of any Return of Buyer or the Company that any indemnity payment should be characterized other than as provided in this Section 4.7(g), the Party that receives the proposed recharacterization (the "Affected Party") shall promptly notify the other Party (the "Consulted Party") in writing, with a copy of the proposed recharacterization. The Affected Party may control any proceedings involving the proposed recharacterization but (1) shall resist, in good faith and by appropriate proceedings, the proposed recharacterization, (2) shall provide the Consulted Party with copies of the portions of all communications from the relevant Tax Agency and all proposed filings and submissions regarding the proposed recharacterization, (3) shall consult with the Consulted Party regarding the conduct of the contest, and payments between (4) shall not settle or concede the indemnified party and proposed recharacterization without the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 consent of the Maleic AgreementConsulted Party. If the Affected Party materially breaches its obligations under the preceding sentence, the Consulted Party may, in computing the amount of any Loss, at any time subsequent indemnity payable to the making of any payment for indemnification pursuant Affected Party, continue to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not treat its indemnity payments as an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party adjustment to the indemnifying party. Upon making Adjusted Consideration and not as provided in any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, final determination made with respect to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsAffected Party.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article IX shall be net of any amounts actually recovered by the indemnified party Indemnified Party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies or otherwise with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. Losses.
(b) The amount of any Loss Losses for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of under this Agreement Article IX shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising Indemnified Party resulting from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising Indemnified Party resulting from the deductibility incurrence or payment of any such LossLoss or that would be realized if the proceeds of such indemnity payment were used to ameliorate the circumstance that gave rise to the Indemnification Claim (in each case, grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). In computing To the extent payment of such Claim does not give rise to a Tax cost currently payable by the Indemnified Party, if payment of the Claim gives rise to a Tax cost subsequently payable by the Indemnified Party, the Indemnifying Party shall pay the Indemnified Party the amount of any such Tax cost or Tax Benefitwhen, as, and if payable by the indemnified party shall be deemed to recognize all other items Indemnified Party (grossed-up and -down as appropriate in respect of income, gain, loss, deduction or credit before recognizing any item arising from changes in the receipt or accrual actual amount of any the indemnity payment hereunder or resulting from adjustments pursuant to this Section 9.7). To the deductibility extent such Claim does not give rise to a currently realizable Tax benefit, if the amount with respect to which any Claim is made gives rise to a subsequently realized Tax benefit to the Indemnified Party that made the Claim, such Indemnified Party shall refund to the Indemnifying Party the amount of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses such Tax benefit when, as and if realized (i) grossed-up and (ii) -down as appropriate in respect of changes in the second sentence actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). An Indemnified Party shall use its reasonable efforts to maximize and accelerate Tax benefits and to minimize and defer Tax costs whenever legally permissible. For purposes of this Section 13.039.7, and shall be “Tax cost” means the amount by which the Tax liability of the party (or group of entities including the party) is increased or reduced to reflect any such net Tax cost (including gross-upby increase in gross income, reduction in deductions by virtue of decreased tax basis or otherwise, reduction of refund or credit to which the party would otherwise be entitled, or otherwise) plus any related interest, penalty, or net addition to tax payable to the relevant taxing authority as a result of such Tax Benefit only after cost; and “Tax benefit” means the indemnified amount by which the Tax liability of the party has actually realized (or group of entities including the party) is or could be reduced (including by reduction of gross income, availability of deductions, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received or reduction of interest payable directly related to such cost or Tax benefit. For purposes of this AgreementSection 9.7, an indemnified party “Tax benefits” and “Tax costs” shall be deemed computed as if Buyer were a corporation subject to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.tax under
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause Losses payable under this Article X by the Indemnifying Party shall be (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party Indemnified Party under applicable insurance policies (net of any actual costs, expenses or premiums incurred in connection with securing or obtaining such proceeds and any increase in premiums resulting therefrom, except to the True Insurance Policies (as such term is defined in extent that the ATCA) with respect to adjustment itself would excuse, exclude or limit the coverage of all or part of such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall from any other Person alleged to be responsible therefor, (iii) increased to take account of any net Tax cost incurred by the indemnified party Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any decreased by net Tax Benefit (as defined actually realized in cash by the Indemnified Party in the ATCA) realized by Tax year in which the indemnified party Loss occurs or the following Tax year arising from the deductibility incurrence or payment of any such Loss. In computing the amount Losses, and (iii) net of any such Tax cost or Tax Benefit, amounts received by the indemnified party shall be deemed Seller Indemnified Parties to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be extent a claim is made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefitunder Applicable Securities Laws. For purposes hereof, “Tax Benefit” shall mean any refund of this Agreement, an indemnified party shall be deemed to have “Taxes actually realized” a net Tax cost or a net Tax Benefit paid in cash to the extent thatIndemnified Party. For the avoidance of doubt, and at Tax Benefits actually realized by an Indemnified Party do not include any increase in any net operating loss of such time asIndemnified Party or any increase in the Tax basis of any asset held by, or other Tax attribute of, such Party until such Tax attribute actually results in a refund, credit for overpayment or reduction in Tax payments. If the amount Indemnified Party recovers any amounts under applicable insurance policies, or from any other Person alleged to be responsible in respect of Taxes payable a Loss that is the subject of indemnification under this Article X subsequent to an indemnification payment by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility Indemnifying Party in respect of such Loss, as then such Indemnified Party shall promptly reimburse the case may be. The amount Indemnifying Party for the excess (if any) of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor formi) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid paid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party Indemnifying Party in respect of such Loss, plus the indemnifiable Loss to which amount received from the third party (net of any direct, out-of-pocket expenses reasonably incurred by such payment relates. Each Indemnified Party in collecting such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect amount) in respect of such Loss, less (ii) the above described subrogation rightsfull amount of Loss.
Appears in 1 contract
Calculation of Losses. (a) The Any indemnification payments owed by any Party under Article VI or Article VIII in respect of any Losses shall be limited to the amount of any Loss for which indemnification is provided in clause liability or damage that remains after deducting therefrom (i)) any insurance proceeds actually received (net of any deductibles, Taxes, out-of-pocket collection expenses, external legal expenses and premium increases) by the Person seeking indemnification under this Agreement in respect of such Losses, and (ii)) any refund, credit or reduction in otherwise required Tax payments or other Tax benefit actually received or recognized by the Person seeking indemnification under this agreement as a result of such Loss net of any applicable Tax detriment. To the extent proceeds under insurance policies or any Tax payments or other Tax benefit are actually received by a Buyer Indemnified Party with respect to any Losses after indemnification payments have been made to such Buyer Indemnified Party for such Losses, such Buyer Indemnified Party will promptly proportionately reimburse the Indemnifying Parties having made such payments up to the amount of such indemnification payments.
(iii), (ivb) or (v)(A) of Section 13.01(a) of Notwithstanding anything in this Agreement to the contrary, the amount of Losses related thereto shall be determined without regard to any qualifications therein referencing terms “material”, “materially”, “Material Adverse Change” or clause words of similar import set forth therein.
(i)c) Notwithstanding anything to the contrary contained in this Agreement, the rights of any Buyer Indemnified Party to indemnification pursuant to Sections 8.2(a)(i) and (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall not be net impacted or limited by any knowledge that any Buyer Indemnified Party may have acquired, or could have acquired, whether before or after the Closing Date, nor by any investigation or diligence by or at the direction of any amounts actually recovered by such Buyer Indemnified Party.
(d) Notwithstanding anything to the indemnified party under contrary herein, in no event shall any Party be entitled to obtain indemnification more than once in respect of the True Insurance Policies (as same Loss even though such term Loss may have resulted from the breach of more than one of the representations, warranties, agreements and covenants in this Agreement, including to the extent a purported Loss is defined accounted for in the ATCAFinal Closing Adjustment or listed as a liability in the Financial Statements.
(e) with respect A Buyer Indemnified Party shall act in good faith and a commercially reasonable manner to such Loss; providedmitigate any Losses they may pay, howeverincur, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss suffer or sustain for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments available hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility of any such Loss. In computing the amount of any such Tax cost or Tax Benefitwhich, 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 or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual avoidance of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewithdoubt, shall promptly be repaid by the indemnified party not require any Buyer Indemnified Party to the indemnifying party. Upon making seek recovery from any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified third party (other than any rights of such indemnified party under any pursuant to insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights)).
Appears in 1 contract
Sources: Purchase Agreement (Leaf Group Ltd.)
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Losses payable under Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement 4.1 by the Indemnifying Party shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred amounts recovered or recoverable by the indemnified party arising Indemnified Party under applicable insurance policies or from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) any other person alleged to be responsible therefor, and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) tax benefit realized by the indemnified party Indemnified Party arising from the deductibility incurrence or payment of any such LossLosses 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 cost or Tax Benefittax benefit, the indemnified party Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item items arising from the receipt incurrence or accrual payment of any indemnity 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 hereunder 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 deductibility amount received by the Indemnified Party, net of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable expenses incurred by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that Indemnified Party in collecting such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryamount.
(b) No indemnified party shall be entitled Each Indemnified Party must mitigate to the extent required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) business days after the benefit is received.
(c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 13.01(a4.1 and the Indemnified Party could have recovered all or a part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment.
(d) The Assignor (including any officer or director of Grenadier) shall not have any right of contribution, indemnification or right of advancement from Grenadier or the Assignee with respect to any Loss that has been taken account claimed by an Indemnified Party. The Assignor shall not make any claim for monetary damages or indemnification against either Grenadier or the Assignee or any of in their respective Affiliates with respect to any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced claim properly brought by recovery, settlement an Assignee Indemnified Party under this Article IV or otherwise under or pursuant relating to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified partythis Agreement, the amount of such reduction, less any costs, expenses, premiums Promissory Note or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsTransactions.
Appears in 1 contract
Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement Article VIII shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, loss deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, paragraph and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “"actually realized” " a net Tax cost or a net Tax Benefit benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, Taxes that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility incurrence or payment of such Loss, as the case may be. The amount Any offset made against any Receivable based upon or arising from any liability of any increase or reduction hereunder Seller that Purchaser has not expressly agreed to assume pursuant to Section 1.03(a) shall be adjusted to reflect any final determination (a Loss for which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryindemnification is provided hereunder.
(b) No indemnified party Neither the provisions of Section 1.05 or 6.05 relating to adjustments of the Purchase Price nor the provisions of Article VI relating to Seller's ability to Cure shall be entitled deemed to indemnification pursuant limit the rights of Purchaser under this Article VIII or, subject to Section 13.01(a) with respect the provisions hereof, otherwise to any Loss seek recovery of Losses from Seller; provided, however, that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If calculating the amount of any Loss, at any time subsequent to the making of any payment Loss for which indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced provided under this Article VIII there shall be taken into account amounts received by recovery, settlement or otherwise Purchaser under or pursuant to any claim, recovery, settlement or payment by or against any such other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party provisions in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsLoss.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sappi LTD)
Calculation of Losses. (a) The In calculating amounts payable to an Indemnified Party pursuant to this Article VII, the amount of the indemnified Losses shall be determined without duplication of any other Loss for which an indemnification is provided in clause (i)claim has been made under any other representation, (ii)warranty, (iii), (iv) covenant or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement obligation and shall be computed net of any amounts actually recovered Tax benefit (whether in the form of reduced Taxes payable, increased rights to Tax refunds or otherwise) realized or realizable by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) Indemnified Party or any of its Affiliates with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance PolicyLosses. The amount of Indemnified Parties shall use reasonable best efforts to realize any Loss for which Tax benefit with respect to such Losses. If an Indemnified Party realizes a Tax benefit with respect to Losses at any time subsequent to any indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be Article VII (i) increased and provided such Tax benefit was not taken into account in determining the amount that the Indemnifying Party was required to take account of any net Tax cost incurred pay to the Indemnified Party hereunder in connection with such Losses by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility of any such Loss. In computing reducing the amount of such payment), then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Tax cost or Tax Benefit, Indemnifying Party in connection with providing such indemnification up to such amount realized by such Indemnified Party (but in no event in excess of the indemnified party shall be deemed amount paid by the Indemnifying Party in connection with the indemnification claim giving rise thereto). Notwithstanding anything to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) contrary contained in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party in no event shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall Parent Indemnified Party be entitled to indemnification pursuant to Section 13.01(a) this Article VII with respect to any Loss liability that has been taken account is accrued (and then only to the extent thereof) on the Final Statement or any amount that was the subject of in any adjustment a dispute submitted to, and resolved by, the Accounting Firm pursuant to Section 1.05 of 1.5 or that was resolved by the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification Parties pursuant to Section 13.01(a) 1.5, or 13.02(a), is reduced by recovery, settlement or that was otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate taken into account in the calculation of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsFinal Merger Consideration.
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Calculation of Losses. (a) The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article VIII shall be net of any amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies with respect to such Loss; provided, however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement and shall be (ia) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (iib) reduced to take account of any net Tax Benefit (as defined in the ATCA) benefit realized by the indemnified party arising from the deductibility incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax Benefitbenefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, loss deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder The amount of the Loss arising out of any item included as a liability in calculating Closing Working Capital shall initially be made without regard calculated net of the amount so included. The amount of the Loss arising out of any reduction in value of any Current Asset acquired at the Closing shall be calculated net of the reported value of such Current Asset used in calculating Closing Working Capital. Losses shall not be limited to clauses matters asserted by third parties, but includes Losses incurred or sustained by an indemnified party (i) and (iias defined below) in the second sentence absence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified third party has actually realized such cost or benefitclaims. For purposes of this Agreement, Payments by an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by amounts for which such indemnified party is increased above or reduced belowindemnified hereunder shall not be a condition precedent for recovery under this Article VIII; PROVIDED, as the case may be, the amount of TaxesHOWEVER, that such if an indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility subsequently is paid any portion of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced amounts by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified a third party, the amount that any such portion (net of such reduction, less any costs, expenses, premiums or other offsets reasonable costs incurred in connection therewith, shall promptly be repaid by the indemnified party in connection with obtaining such amount) shall be paid to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
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Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) under this Article IX or (v)(A) of Section 13.01(a) of this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article X shall be net of any (i) Tax benefits actually realized by the indemnified party as a result of the incurrence or payment of any such Losses in the year of the Loss or the following three (3) taxable years (“Tax Benefit”), and (ii) amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) insurance policies or otherwise with respect to such Loss; providedLosses (in each case net of any reasonable and documented deductible or copayment, howeverthe costs of filing a claim, that arbitration costs, and all other documented out-of-pocket expenses and Taxes incurred in connection with such recovery). If such Tax Benefit for the year of the Loss or the following three (3) taxable years is determined after the applicable indemnity payment is made pursuant to this Section 9.6, the indemnified party shall repay to the indemnifying party, promptly after such determination, any amount that the indemnifying party would not have had to pay pursuant to this Section 9.6 had such determination been made at the time of such payment (provided that in no event shall the indemnifying party receive any obligation payment in excess of the amount actually paid to seek the indemnified party in respect of such Loss). In the event that an insurance recovery is received by any indemnified party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund shall be made promptly to the indemnifying party that made or provided such indemnification payment to such indemnified party equal to the excess of (I) the amount previously received by such indemnified party hereunder, plus the amount of the insurance payments or other recoveries from such insurance recovery actually received by such indemnified party (net of any expenses reasonably incurred by the indemnified party in collecting such amounts, including any deductible or copayment amounts, reasonable and documented attorney’s fees and increase in insurance premiums), over (B) the amount of Losses with respect to such claim which such indemnified party incurred, regardless of whether such indemnified party has become entitled to receive an indemnity payment under any True Insurance Policythis Section 9 (provided that in no event shall the indemnifying party receive a refund in excess of the amount actually paid to the indemnified party in respect of such Loss). The amount of any Loss Losses for which indemnification is provided pursuant to Section 13.01(a) under this Article IX or Section 13.02(a) of this Agreement Article X shall be (i) increased to take into account of any net additional Tax cost incurred by the indemnified party indemnitee in the year of the Loss or the following three (3) taxable years arising from the receipt or accrual of indemnity indemnification payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net “Tax Benefit (as defined in the ATCA) realized by the indemnified party arising from the deductibility of any such LossCost”). In computing the amount of any such Tax cost Cost or Tax Benefit, the indemnified party indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity indemnification payment hereunder or the deductibility incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) For the avoidance of doubt, nothing in the second sentence of this Section 13.03, and foregoing shall be increased provide Seller with any access or reduced right to reflect any such net review Purchaser’s or its Subsidiaries Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessaryReturns.
(b) No indemnified party shall Notwithstanding anything to the contrary elsewhere in this Agreement, no Party shall, in any event, be entitled liable to indemnification pursuant any other Person for any Excluded Damages hereunder.
(c) Notwithstanding anything to Section 13.01(a) the contrary elsewhere in this Agreement, with respect to determining whether (i) a breach of any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If Seller Representations has occurred for purposes of this Article IX or Article X, or (ii) the amount of any LossLosses incurred or suffered, at any time subsequent to the making for such purposes, as a result of any payment for indemnification pursuant to Section 13.01(a) such breach, any Material Adverse Effect or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of materiality qualification limiting the indemnified party, the amount scope of such reduction, less any costs, expenses, premiums representations or other offsets incurred in connection therewith, warranties shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsdisregarded.
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Sources: Asset Purchase Agreement (Costa Inc)
Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of under this Agreement or clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement Article IX shall be computed net of any amounts actually recovered insurance proceeds received by the indemnified party under Indemnified Party in connection with such Losses. If the True Insurance Policies (as such term is defined in the ATCA) amount with respect to such Loss; provided, however, that which any claim is made under this Article IX (an “Indemnity Claim”) gives rise to the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to take account of any net Tax cost incurred by making the indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net claim an actual Tax Benefit (as defined in below), the ATCA) realized indemnity payment shall be reduced by the indemnified party arising from the deductibility of any such Loss. In computing the amount of any the Tax Benefit available to the party making the claim. To the extent such Tax cost or Indemnity Claim does not give rise to an actual Tax Benefit, if the indemnified amount with respect to which any Indemnity Claim is made gives rise to a Tax Benefit that is realized within five years of the close of the taxable year that includes the year of the Loss subject to this Section 9.05 to the party that made the claim, such party shall refund to the Indemnifying Party the amount of such Tax Benefit when, as and if realized. For the purposes of this Agreement, any subsequently realized Tax Benefit shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to clauses (i) and (ii) treated as though it were a reduction in the second sentence amount of this Section 13.03the initial Indemnity Claim, and the liabilities of the parties shall be increased redetermined as though both occurred at or reduced prior to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefittime of the indemnity payment. For purposes of this AgreementSection 9.05, a “Tax Benefit” means an indemnified amount by which the Income Tax liability of the party (or group of corporations including the party) is reduced (including, without limitation, by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Taxing Authority. Where a party has other losses, deductions, credits or items available to it, the determination of any Tax Benefit shall be deemed calculated by comparing the Income Tax liability of the Indemnified Party, computed without regard to have “actually realized” a net Tax cost any losses, deductions, credits or a net Tax Benefit items relating to the extent thatIndemnity Claim, and at such time asto the Income Tax liability of the Indemnified Party, computed after taking into account any losses, deductions, credits or items relating to the Indemnity Claim. In the event that there should be a determination disallowing the Tax Benefit, the Indemnifying Party shall be liable to refund to the Indemnified Party the amount of Taxes payable by such indemnified party is increased above any related reduction previously allowed or reduced below, as payments previously made to the case may be, the amount of Taxes, that such indemnified party would be required Indemnifying Party pursuant to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may bethis Section 9.05. The amount of any increase the refunded reduction or reduction hereunder payment shall be adjusted deemed a payment under this Section 9.05 and thus shall be paid subject to reflect any applicable reductions under this Section 9.05. Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination (which shall include the execution of a Form 870 870-AD or successor form) with respect to the indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party Indemnified Party or any of its affiliates causes any such payment not to reflect such be treated as an adjustment shall be made if necessary.
(b) No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the making of any payment Purchase Price for indemnification pursuant to Section 13.01(a) or 13.02(a), is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be subrogated to all rights of the indemnified party (other than any rights of such indemnified party under any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of the indemnifiable Loss to which such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rightsUnited States Federal income purposes.
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