Common use of Subsequent Recovery Clause in Contracts

Subsequent Recovery. If any Indemnifying Party pays an amount to the Indemnified Parties in discharge of an Indemnity Claim, and the Indemnified Parties subsequently actually recovers (by way of cash or any other means) from a third party (including insurers), any amount to compensate for the Loss that gave rise to such Indemnity Claim (or any portion thereof), then: (a) if the aggregate amount of Loss suffered or incurred by the Indemnified Parties has been fully compensated for by the Indemnifying Party, the Indemnified Parties shall pay to the Indemnifying Party the lower of (A) the Sum Recovered; and (B) amounts paid by the Indemnifying Party to the Indemnified Parties in relation to such claim; or (b) if the amounts paid by the Indemnifying Party are less than the Losses actually suffered or incurred by the Indemnified Parties, and the aggregate of the amounts paid by the Indemnifying Party and the Sum Recovered exceeds the Losses suffered by the Indemnified Parties, the Indemnified Parties shall pay to the Indemnifying Party the lower of (A) the amount of such excess; and (B) amounts paid by the Indemnifying Party to the Indemnified Parties in relation to such claim. (c) For the purposes of the foregoing, “Sum Recovered”, in relation to the Loss that gave rise to Indemnity Event, means an amount equal to the total of the amount(s) recovered from the third party less all costs incurred by the Indemnified Parties in recovering such amount(s) from the third party (including any additional amounts of insurance premium payable, in the Financial Year immediately succeeding the Financial Year in which the claim was made under the insurance policy, as a result of such recovery, provided that such additional amounts of insurance premium are not attributable to any additional coverage or benefit obtained in such insurance policy). (d) It is hereby clarified that to the extent the payment of any portion of the Sum Recovered is tax deductible in the hands of the Indemnified Parties and where Taxes are required to be withheld on such payments by the Indemnified Parties, such portion of the Sum Recovered that is Tax deductible (if any), shall be grossed up to the extent of the Taxes withheld, at the time of payment of the Sum Recovered by the Indemnified Parties to the Indemnifying Party

Subsequent Recovery. If any Indemnifying Party pays an amount to the Indemnified Parties in discharge of an Indemnity Claim, and the Indemnified Parties subsequently actually recovers (by way of cash or any other means) from a third party (including insurers), any amount to compensate for the Loss that gave rise to such Indemnity Claim (or any portion thereof), then11.1 If: (a) if the aggregate amount of Loss suffered or incurred by the Indemnified Parties has been fully compensated for by the Indemnifying Party, the Indemnified Parties shall pay Whirlpool pays to the Indemnifying Party the lower of Buyer; (Ab) the Sum Recovered; and Whirlpool pays to Ardutch; (Bc) amounts paid by the Indemnifying Party Ardutch pays to the Indemnified Parties in relation Buyer; (d) Ardutch pays to such claimWhirlpool; (e) Buyer pays to Ardutch; or (bf) if Buyer pays to Whirlpool, (the amounts paid by party making such payment being the Indemnifying “Paying Party”) and the party receiving such payment being the “Receiving Party”) any amount in respect of a Claim other than a Tax Claim (the amount of such payment, to the extent it does not comprise interest on late payment, being the “Damages Payment”) and: (i) any member of the Buyer Group or any of Ardutch or its Affiliates (where Whirlpool is the Paying Party are less and the Buyer is the Receiving Party); (ii) Ardutch or its Affiliates (where Whirlpool is the Paying Party and Ardutch is the Receiving Party); (iii) any member of the Buyer Group (where Ardutch is the Paying Party and the Buyer is the Receiving Party); (iv) any member of the Whirlpool Group (where Ardutch is the Paying Party and Whirlpool is the Receiving Party); (v) any member of the Whirlpool Group (where the Buyer is the Paying Party and Whirlpool is the Receiving Party); or (vi) Ardutch or its Affiliates (where the Buyer is the Paying Party and Ardutch is the Receiving Party), is or subsequently becomes entitled to recover from any person (other than the Losses Paying Party) a sum which is referable to that Claim (including any by way of discount, relief or credit), the Receiving Party shall give prompt notice to the Paying Party and shall procure that it and any of its relevant Affiliates shall use reasonable endeavours to seek recovery from such third party. 11.2 If: (a) any amount is actually suffered or recovered from such third party (the party receiving such amount being the “Recovering Party”), then such amount (after the deduction of the costs reasonably incurred by the Indemnified PartiesRecovering Party and any of its relevant Affiliates, in seeking to obtain such recovery and any Tax payable on such recovery (such resulting amount being the “Third Party Sum”)); (b) such Third Party Sum was not taken into account as a pro tanto deduction in calculating the Damages Payment; and (c) the aggregate of the amounts paid Third Party Sum and the Damages Payment exceed the amount required to compensate the Receiving Party in full in respect of the relevant Claim (such excess being the “Excess Recovery”), Whirlpool (where the Recovering Party is a member of the Whirlpool Group), Ardutch (where the Recovering Party is Ardutch or its Affiliates other than a member of the Buyer Group) and the Buyer (where the Recovering Party is a member of the Buyer Group) shall promptly following receipt of the Third Party Sum by the Indemnifying Party and the Sum Recovered exceeds the Losses suffered by the Indemnified PartiesRecovering Party, the Indemnified Parties shall pay repay to the Indemnifying Paying Party the lower of (A) the amount of such excess; and (B) amounts paid by the Indemnifying Party to the Indemnified Parties in relation to such claim. (c) For the purposes of the foregoing, “Sum Recovered”, in relation to the Loss that gave rise to Indemnity Event, means an amount equal to the total of lower of: (i) the amount(sExcess Recovery; and (ii) recovered from the third party less all costs incurred by the Indemnified Parties in recovering such amount(s) from the third party (including any additional amounts of insurance premium payable, in the Financial Year immediately succeeding the Financial Year in which the claim was made under the insurance policy, as a result of such recovery, provided that such additional amounts of insurance premium are not attributable to any additional coverage or benefit obtained in such insurance policy)Damages Payment. (d) It is hereby clarified that to the extent the payment of any portion of the Sum Recovered is tax deductible in the hands of the Indemnified Parties and where Taxes are required to be withheld on such payments by the Indemnified Parties, such portion of the Sum Recovered that is Tax deductible (if any), shall be grossed up to the extent of the Taxes withheld, at the time of payment of the Sum Recovered by the Indemnified Parties to the Indemnifying Party