Common use of Adjustments to Indemnification Obligations Clause in Contracts

Adjustments to Indemnification Obligations. (a) The parties intend that each Liability subject to indemnification, contribution or reimbursement pursuant hereto shall be net of (i) all Insurance Proceeds, and (ii) all recoveries, judgments, settlements, contribution, indemnities and other amounts received (including by way of set-off) from all Third Parties, in each case that actually reduce the amount of, or are paid to the applicable indemnitee in respect of, such Liability (“Third-Party Proceeds”). Accordingly, the amount that a party (each, an “Indemnifying Party”) is required to pay to each Person entitled to indemnification hereunder (each an “Indemnitee”) shall be reduced by all Insurance Proceeds and Third-Party Proceeds received by or on behalf of the Indemnitee in respect of the relevant Liability; provided, however, that all amounts described in Section 5.2 or 5.3 that are incurred by an Indemnitee shall be paid promptly by the Indemnifying Party and shall not be delayed pending any determination as to the availability of Insurance Proceeds or Third-Party Proceeds; provided, further, that upon such payment by or on behalf of an Indemnifying Party to an Indemnitee in connection with a Third-Party Claim, to the extent permitted by applicable Laws such Indemnitee shall assign its rights to recover all Insurance Proceeds and Third-Party Proceeds to the Indemnifying Party and such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to all events and circumstances in respect of which such Indemnitee may have with respect to all rights, defenses, and claims relating to such Third-Party Claim. If, notwithstanding the second proviso in the preceding sentence, an Indemnitee receives a payment required to be made under this Section 5.4(a) (an “Indemnity Payment”) from an Indemnifying Party in respect of a Liability and subsequently receives Insurance Proceeds or Third-Party Proceeds in respect of such Liability, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the excess of the amount paid by the Indemnifying Party over the amount that would have been due if such Insurance Proceeds and Third-Party Proceeds had been received before the Indemnity Payment was made. Each member of the SHC Group and each member of the Seritage Group shall use commercially reasonable efforts to seek to collect or recover all Insurance Proceeds and all Third-Party Proceeds to which such Person is entitled in respect of a Liability for which such Person seeks indemnification pursuant to this Article V; provided, however, that such Person’s inability to collect or recover any such Insurance Proceeds or Third-Party Proceeds shall not limit the Indemnifying Party’s obligations hereunder. (b) An insurer that would otherwise be obligated to pay a claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or other third party shall be entitled to a “windfall” (i.e., a benefit it would not have been entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof.

Adjustments to Indemnification Obligations. (a) The parties hereto intend that each Liability subject to indemnification, contribution or reimbursement pursuant hereto shall will be net of (i) all Insurance Proceeds, and (ii) all recoveries, judgments, settlements, contribution, indemnities and other amounts received (including by way of set-off) from all Third Parties, in each case that actually reduce the amount of, or are paid to the applicable indemnitee in respect of, such Liability (“Third-Third Party Proceeds”). Accordingly, the amount that a party (each, an “Indemnifying Party”) is required to pay to each Person entitled to indemnification hereunder (each an “IndemniteeIndemnified Party”) shall be reduced by all Insurance Proceeds and Third-Third Party Proceeds received by or on behalf of the Indemnitee Indemnified Party in respect of the relevant Liability; provided, however, that all amounts described in Section 5.2 10.2 or 5.3 that Section 10.3 which are incurred by an Indemnitee Indemnified Party shall be paid promptly by the Indemnifying Party and shall not be delayed pending any determination as to the availability of Insurance Proceeds or Third-Third Party Proceeds; provided, further, that upon such payment by or on behalf of an Indemnifying Party to an Indemnitee Indemnified Party in connection with a Third-Third Party Claim, to the extent permitted by applicable Applicable Laws such Indemnitee Indemnified Party shall assign its rights to recover all Insurance Proceeds and Third-Third Party Proceeds to the Indemnifying Party and such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee Indemnified Party as to all events and circumstances in respect of which such Indemnitee Indemnified Party may have with respect to all rights, defenses, and claims relating to such Third-Third Party Claim. If, notwithstanding the second proviso in the preceding sentence, an Indemnitee Indemnified Party receives a payment required to be made under this Section 5.4(a) Article X (an “Indemnity Payment”) from an Indemnifying Party in respect of a Liability and subsequently receives Insurance Proceeds or Third-Third Party Proceeds in respect of such Liability, then the Indemnitee Indemnified Party shall pay to the Indemnifying Party an amount equal to the excess of the amount paid by the Indemnifying Party over the amount that would have been due if such Insurance Proceeds and Third-Third Party Proceeds had been received before the Indemnity Payment was made. Each member of the SHC Group Entity and each member of the Seritage Group LE Entity shall use commercially reasonable best efforts to seek to collect or recover all Insurance Proceeds and all Third-Third Party Proceeds to which such Person is entitled in respect of a Liability for which such Person seeks indemnification pursuant to this Article VX; provided, however, that such Person’s inability to collect or recover any such Insurance Proceeds or Third-Third Party Proceeds shall not limit the Indemnifying Party’s obligations hereunder. (b) An insurer that would otherwise be obligated to pay a claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or other third party shall be entitled to a “windfall” (i.e., a benefit it would not have been be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof.

Adjustments to Indemnification Obligations. The amount of any Loss for which indemnification is provided under Sections 11.2 or 11.3 (athe "Specified Sections") The parties intend that each Liability subject to indemnification, contribution or reimbursement pursuant hereto shall be net of (i) all Insurance Proceedsany accruals or reserves created specifically in respect thereof on the Closing Balance Sheet, (ii) any amounts recovered by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any third party, and (iiiii) all recoveriesany insurance proceeds or other cash receipts or sources of reimbursement received from a third party as an offset against such Loss (each such person named above, judgmentsa "Collateral Source"), settlements, contribution, indemnities and other amounts received (including by way of set-offiv) from all Third Parties, in each case that actually reduce an amount equal to the amount ofof the Tax benefit, if any, actually realized by the Indemnified Party or are paid any affiliate thereof. To the extent that an Indemnified Party or an affiliate thereof actually realizes Tax benefits subsequent to the applicable indemnitee date of computation and payment of an indemnification payment due hereunder to such Indemnified Party, the Indemnified Party shall pay to the Indemnifying Party the amount of such Tax Benefits as and when they are actually realized by the Indemnified Party or such affiliate. To the extent that a taxing authority shall require the amount of any indemnification payment to be included in respect ofincome hereunder, such Liability (“Third-Party Proceeds”). Accordingly, the amount that a party (each, an “Indemnifying Party”) is required to pay to each Person entitled to indemnification hereunder (each an “Indemnitee”) shall be reduced taken into account in determining the Tax benefit derived by all Insurance Proceeds and Third-the Indemnified Party Proceeds received by or on behalf of the Indemnitee in respect of the relevant Liabilityan affiliate thereof; provided, however, that all amounts described the Seller shall not be required to make any indemnification payment to a Purchaser Indemnified Party in respect of a Loss which shall exceed the amount of such Loss, as computed in accordance with this Agreement but prior to reduction thereof by Section 5.2 11.10(iv). The Indemnified Party shall provide to the Indemnifying Party a schedule setting forth in reasonable detail the computation of the amount of Tax benefits actually realized which is attributable to a Loss (whether such Tax benefits are actually realized prior or 5.3 subsequent to the date of the indemnification payment to the Indemnified Party hereunder) and the reason, if any, why such Loss does not produce a current Tax benefit and the basis, if any, for the taxation of an indemnification payment received hereunder. In the event that the Indemnifying Party objects to the computation of Tax benefits actually realized by the Indemnified Party or an affiliate thereof, the parties shall seek to resolve such disagreement in good faith; if the parties are incurred by an Indemnitee unable to resolve such disagreement, the parties shall submit the matter to the Accounting Referee, whose determination shall be paid promptly final and binding and whose fees shall be borne 50% by the Indemnifying Party and shall not be delayed pending any determination as 50% by the Indemnified Party. The Indemnifying Party may require an Indemnified Party to assign the rights to seek recovery pursuant to the availability first sentence of Insurance Proceeds or Third-Party Proceedsthis Section 11.10; provided, further, that upon such payment by or on behalf of an Indemnifying Party to an Indemnitee in connection with a Third-Party Claim, to the extent permitted by applicable Laws such Indemnitee shall assign its rights to recover all Insurance Proceeds and Third-Party Proceeds to the Indemnifying Party and will then be responsible for pursuing such Indemnifying Party shall claim at its own expense. If the amount to be subrogated to and shall stand in the place of such Indemnitee as to all events and circumstances in respect of which such Indemnitee may have with respect to all rights, defenses, and claims relating to such Third-Party Claim. If, notwithstanding the second proviso in the preceding sentence, an Indemnitee receives a netted hereunder from any payment required to be made under this Section 5.4(a) (an “Indemnity Payment”) from an Indemnifying Party in respect of a Liability and subsequently receives Insurance Proceeds Sections 11.2 or Third-Party Proceeds in respect of such Liability, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the excess of the amount paid 11.3 is determined after payment by the Indemnifying Party over of any amount otherwise required to be paid to an Indemnified Party to this Article XI, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have been due if such Insurance Proceeds and Third-Party Proceeds had been received before the Indemnity Payment was made. Each member of the SHC Group and each member of the Seritage Group shall use commercially reasonable efforts to seek to collect or recover all Insurance Proceeds and all Third-Party Proceeds to which such Person is entitled in respect of a Liability for which such Person seeks indemnification pay pursuant to this Article V; provided, however, that XI had such Person’s inability to collect or recover any determination been made at the time of such Insurance Proceeds or Third-Party Proceeds shall not limit the Indemnifying Party’s obligations hereunderpayment. (b) An insurer that would otherwise be obligated to pay a claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or other third party shall be entitled to a “windfall” (i.e., a benefit it would not have been entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof.

Adjustments to Indemnification Obligations. (a) The parties intend that each Liability subject to indemnification, contribution or reimbursement pursuant hereto All ------------------------------------------ indemnity payments made under this Article VIII shall be net of (i) all Insurance Proceeds, and (ii) all recoveries, judgments, settlements, contribution, indemnities and other amounts received (including by way of set-off) from all Third Parties, in each case that actually reduce the amount of, or are paid treated as adjustments to the applicable indemnitee in Purchase Consideration. All computations of indemnity payments due under this Article VIII shall reflect the actual present cash cost of the obligation with respect ofto which the indemnity payment relates. If any Indemnified Party receives a Tax deduction, such Liability Tax credit or other Tax benefit (“Third-Party Proceeds”). Accordingly"Tax Benefit") by virtue of having paid or accrued an amount for which an indemnity payment is provided, the amount of such Tax Benefit will be refunded to the Party making such indemnity payment when, as and if such Indemnified Party realizes a cash Tax savings from such Tax Benefit. If for any reason an Indemnified Party has any Tax imposed on it on account of its receipt of an indemnity payment including payments pursuant to this sentence ("Additional Indemnity Taxes"), such indemnity payment shall be "grossed-up" for the Additional Indemnity Taxes so that a party the net payments received by the Indemnified Party will be equal to the amount of the indemnity payment such Indemnified Party would have received had no such Additional Indemnity Taxes been imposed. (each, an “b) The amount which any Indemnifying Party”) Party is or may be required to pay any Indemnified Party pursuant to each Person entitled to indemnification hereunder (each an “Indemnitee”) this Article VIII shall be reduced (including without limitation, retroactively) by all Insurance Proceeds and Third-Party Proceeds received any insurance proceeds or other amounts actually recovered by or on behalf of the Indemnitee such Indemnified Party in respect reduction of the relevant Liability; provided, however, that all amounts described in Section 5.2 or 5.3 that are incurred by related Loss. If an Indemnitee shall be paid promptly by the Indemnifying Party and shall not be delayed pending any determination as to the availability of Insurance Proceeds or Third-Party Proceeds; provided, further, that upon such payment by or on behalf of an Indemnifying Party to an Indemnitee in connection with a Third-Party Claim, to the extent permitted by applicable Laws such Indemnitee shall assign its rights to recover all Insurance Proceeds and Third-Party Proceeds to the Indemnifying Party and such Indemnifying Indemnified Party shall be subrogated to and shall stand in have received the place of such Indemnitee as to all events and circumstances in respect of which such Indemnitee may have with respect to all rights, defenses, and claims relating to such Third-Party Claim. If, notwithstanding the second proviso in the preceding sentence, an Indemnitee receives a payment required to be made under by this Section 5.4(a) (an “Indemnity Payment”) Agreement from an Indemnifying Party in respect of a Liability Loss and shall subsequently receives Insurance Proceeds actually receive insurance proceeds or Third-Party Proceeds other amounts in respect of such LiabilityLoss, then the Indemnitee such Indemnified Party shall pay to the such Indemnifying Party an amount a sum equal to the excess amount of the amount paid by the Indemnifying Party over the amount that would have been due if such Insurance Proceeds and Third-Party Proceeds had been received before the Indemnity Payment was made. Each member of the SHC Group and each member of the Seritage Group shall use commercially reasonable efforts to seek to collect or recover all Insurance Proceeds and all Third-Party Proceeds to which such Person is entitled in respect of a Liability for which such Person seeks indemnification pursuant to this Article V; provided, however, that such Person’s inability to collect or recover any such Insurance Proceeds or Third-Party Proceeds shall not limit the Indemnifying Party’s obligations hereunder. (b) An insurer that would otherwise be obligated to pay a claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer insurance proceeds or other third party shall be entitled to a “windfall” amounts actually received (i.e., a benefit it would not have been entitled to receive net of any expenses in obtaining the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereofsame).

Adjustments to Indemnification Obligations. (a) The parties intend that each Liability subject All indemnity payments required to indemnification, contribution or reimbursement pursuant hereto made under this Article XI by Parent shall be net treated as adjustments to the Merger Consideration. Parent shall satisfy any finally determined Indemnifiable Claim against it by delivering to the Indemnified Party, at Parent's option, cash or that number of (i) all Insurance Proceeds, and (ii) all recoveries, judgments, settlements, contribution, indemnities and other amounts received (including by way shares of set-off) from all Third Parties, in each case that actually reduce Parent Common Stock having an aggregate value equal to the amount ofof such claim, or are paid each such share to be valued for this purpose at the average of the per share closing prices for the Parent Common Stock on the AMEX for the five (5) trading days immediately prior to the applicable indemnitee in relevant date of payment or offset. (b) All computations of indemnity payments due under this Article XI shall reflect the actual present cash cost of the obligation with respect ofto which the indemnity payment relates. If any Indemnified Party receives a Tax deduction, such Liability Tax credit or other Tax benefit (“Third-Party Proceeds”). Accordingly"TAX BENEFIT") by virtue of having paid or accrued an amount for which an indemnity payment is provided, the amount of such Tax Benefit will be refunded to the Party making such indemnity payment when, as and if such Indemnified Party realizes a cash Tax savings from such Tax Benefit. If for any reason an Indemnified Party has any Tax imposed on it on account of its receipt of an indemnity payment including payments pursuant to this sentence ("ADDITIONAL INDEMNITY TAXES"), such indemnity payment shall be "grossed-up" for the Additional Indemnity Taxes so that a party the net payments received by the Indemnified Party will be equal to the amount of the indemnity payment such Indemnified Party would have received had no such Additional Indemnity Taxes been imposed. (each, an “c) The amount which any Indemnifying Party”) Party is or may be required to pay any Indemnified Party pursuant to each Person entitled to indemnification hereunder (each an “Indemnitee”) this Article XI shall be reduced (including, without limitation, retroactively) by all Insurance Proceeds and Third-Party Proceeds received any insurance proceeds or other amounts actually recovered by or on behalf of the Indemnitee such Indemnified Party in respect reduction of the relevant Liability; provided, however, that all amounts described in Section 5.2 or 5.3 that are incurred by related Loss. If an Indemnitee shall be paid promptly by the Indemnifying Party and shall not be delayed pending any determination as to the availability of Insurance Proceeds or Third-Party Proceeds; provided, further, that upon such payment by or on behalf of an Indemnifying Party to an Indemnitee in connection with a Third-Party Claim, to the extent permitted by applicable Laws such Indemnitee shall assign its rights to recover all Insurance Proceeds and Third-Party Proceeds to the Indemnifying Party and such Indemnifying Indemnified Party shall be subrogated to and shall stand in have received the place of such Indemnitee as to all events and circumstances in respect of which such Indemnitee may have with respect to all rights, defenses, and claims relating to such Third-Party Claim. If, notwithstanding the second proviso in the preceding sentence, an Indemnitee receives a payment required to be made under by this Section 5.4(a) (an “Indemnity Payment”) Agreement from an Indemnifying Party in respect of a Liability Loss and shall subsequently receives Insurance Proceeds actually receive insurance proceeds or Third-Party Proceeds other amounts in respect of such LiabilityLoss, then the Indemnitee such Indemnified Party shall pay to the such Indemnifying Party an amount a sum equal to the excess amount of the amount paid by the Indemnifying Party over the amount that would have been due if such Insurance Proceeds and Third-Party Proceeds had been received before the Indemnity Payment was made. Each member of the SHC Group and each member of the Seritage Group shall use commercially reasonable efforts to seek to collect or recover all Insurance Proceeds and all Third-Party Proceeds to which such Person is entitled in respect of a Liability for which such Person seeks indemnification pursuant to this Article V; provided, however, that such Person’s inability to collect or recover any such Insurance Proceeds or Third-Party Proceeds shall not limit the Indemnifying Party’s obligations hereunder. (b) An insurer that would otherwise be obligated to pay a claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer insurance proceeds or other third party shall be entitled to a “windfall” amounts actually received (i.e., a benefit it would not have been entitled to receive net of any expenses in obtaining the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereofsame).

Adjustments to Indemnification Obligations. (a) The parties intend that each Liability subject All computations of indemnity payments due under this Article IX shall reflect the actual present cash cost of the obligation with respect to indemnification, contribution which the indemnity payment relates. If any Indemnified Party receives a Tax Benefit by virtue of having paid or reimbursement pursuant hereto shall be net of (i) all Insurance Proceeds, and (ii) all recoveries, judgments, settlements, contribution, indemnities and other amounts received (including by way of set-off) from all Third Parties, in each case that actually reduce the accrued an amount of, or are paid to the applicable indemnitee in respect of, such Liability (“Third-Party Proceeds”). Accordinglyfor which an indemnity payment is provided, the amount of such Tax Benefit will be refunded to the Indemnifying Party making such indemnity payment when, as and if such Indemnified Party realizes a cash Tax savings from such Tax Benefit. If for any reason an Indemnified Party has any Tax imposed on it on account of its receipt of an indemnity payment including payments pursuant to this sentence ("Additional Indemnity Taxes"), such indemnity payment shall be "grossed-up" for the Additional Indemnity Taxes so that a party the net payments received by the Indemnified Party will be equal to the amount of the indemnity payment such Indemnified Party would have received had no such Additional Indemnity Taxes been imposed. (each, an “b) The amount which any Indemnifying Party”) Party is or may be required to pay any Indemnified Party pursuant to each Person entitled to indemnification hereunder (each an “Indemnitee”) this Article IX shall be reduced (including without limitation, retroactively) by all Insurance Proceeds and Third-Party Proceeds received any insurance proceeds or other amounts actually recovered by or on behalf of the Indemnitee such Indemnified Party in respect reduction of the relevant Liability; providedrelated Losses, however, that all amounts described less any increase in Section 5.2 or 5.3 that are insurance premiums incurred by the Indemnified Party as a result of such Loss (a "Premium Increase"). If an Indemnitee shall be paid promptly by the Indemnifying Party and shall not be delayed pending any determination as to the availability of Insurance Proceeds or Third-Party Proceeds; provided, further, that upon such payment by or on behalf of an Indemnifying Party to an Indemnitee in connection with a Third-Party Claim, to the extent permitted by applicable Laws such Indemnitee shall assign its rights to recover all Insurance Proceeds and Third-Party Proceeds to the Indemnifying Party and such Indemnifying Indemnified Party shall be subrogated to and shall stand in have received the place of such Indemnitee as to all events and circumstances in respect of which such Indemnitee may have with respect to all rights, defenses, and claims relating to such Third-Party Claim. If, notwithstanding the second proviso in the preceding sentence, an Indemnitee receives a payment required to be made under by this Section 5.4(a) (an “Indemnity Payment”) Agreement from an Indemnifying Party in respect of a Liability Loss and shall subsequently receives Insurance Proceeds actually receive insurance proceeds or Third-Party Proceeds other amounts in respect of such LiabilityLoss, then the Indemnitee such Indemnified Party shall pay to the such Indemnifying Party an amount a sum equal to the excess amount of such insurance proceeds or other amounts actually received (net of any expenses in obtaining the amount paid by the Indemnifying Party over the amount that would have been due if such Insurance Proceeds and Third-Party Proceeds had been received before the Indemnity Payment was made. Each member of the SHC Group and each member of the Seritage Group shall use commercially reasonable efforts to seek to collect or recover all Insurance Proceeds and all Third-Party Proceeds to which such Person is entitled in respect of a Liability for which such Person seeks indemnification pursuant to this Article V; providedsame), however, that such Person’s inability to collect or recover less any such Insurance Proceeds or Third-Party Proceeds shall not limit the Indemnifying Party’s obligations hereunderPremium Increase. (bc) An insurer that would otherwise be obligated to pay a claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or other third party No Indemnified Party shall be entitled to a “windfall” (i.e., a benefit it would not have been entitled indemnification under this Agreement for consequential or punitive damages with respect to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereofAny Non-Thirty Party Claim.

Adjustments to Indemnification Obligations. (a) The parties intend that each any Liability subject to indemnification, contribution or reimbursement pursuant hereto shall to this Article IX or Article V will be net of (i) all any recovery, judgment, settlement, Insurance Proceeds, and (ii) all recoveries, judgments, settlements, contribution, indemnities and Proceeds or other amounts received (including by way of set-off) from all Third Parties, in each case that actually reduce the amount of, or are paid to of the applicable indemnitee in respect of, such Liability (“Third-Party Proceeds”)Liability. Accordingly, the amount that a any party (each, an “Indemnifying Party”) is required to pay to each any Person entitled to indemnification hereunder (each an “IndemniteeIndemnified Party”) shall will be reduced by all any recovery, judgment, settlement, Insurance Proceeds and Third-Party Proceeds received or other amounts theretofore actually recovered by or on behalf of the Indemnitee Indemnified Party in respect of the relevant related Liability; provided, however, that all any amounts described in Section 5.2 9.01 or 5.3 that Section 9.02 which are incurred by an Indemnitee Indemnified Party shall be paid or, in the case of amounts which may be insured, advanced, promptly by the Indemnifying Party and shall not be delayed pending any determination as to the availability of Insurance Proceeds or Third-Proceeds. If an Indemnified Party Proceeds; provided, further, that upon such payment by or on behalf of an Indemnifying Party to an Indemnitee in connection with a Third-Party Claim, to the extent permitted by applicable Laws such Indemnitee shall assign its rights to recover all Insurance Proceeds and Third-Party Proceeds to the Indemnifying Party and such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to all events and circumstances in respect of which such Indemnitee may have with respect to all rights, defenses, and claims relating to such Third-Party Claim. If, notwithstanding the second proviso in the preceding sentence, an Indemnitee receives a payment required to be made under this Section 5.4(a) Article IX (an “Indemnity Payment”) from an Indemnifying Party in respect of a any Liability and subsequently receives any recovery, judgment, settlement, Insurance Proceeds or Third-Party Proceeds in respect of such Liabilityother amounts, then the Indemnitee shall Indemnified Party will pay to the Indemnifying Party an amount equal to the excess of the amount paid by the Indemnifying Party recovery, judgment, settlement, Insurance Proceeds or other amounts received over the amount that would have been due if such the recovery, judgment, settlement, Insurance Proceeds and Third-Party Proceeds or other amounts had been received received, realized or recovered before the Indemnity Payment was made. Each member of the SHC Group and each member of the Seritage Group shall use commercially reasonable efforts to seek to collect or recover all Insurance Proceeds and all Third-Party Proceeds to which such Person is entitled in respect of a Liability for which such Person seeks indemnification pursuant to this Article V; provided, however, that such Person’s inability to collect or recover any such Insurance Proceeds or Third-Party Proceeds shall not limit the Indemnifying Party’s obligations hereunder. (b) An insurer that who would otherwise be obligated to pay a any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other third party shall be entitled to a “windfall” (i.e., a benefit it would not have been be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof. (c) The amount of any payment required to be paid under this Agreement between CBS or any CBS Subsidiary, on the one hand, and New Viacom or any New Viacom Subsidiary, on the other hand, in respect of a Pre-Separation Liability accruing for federal Income Tax purposes after the Separation Date (a “Payment”), shall be reduced to take into account any net Income Tax benefit of the payee arising from incurring or satisfying the Pre-Separation Liability giving rise to the payment obligation. The preceding sentence shall be implemented by reducing the Payment at the time such Payment is due to reflect the amount of such net Income Tax benefit, assuming for this purpose that any such net Income Tax benefit would be fully and immediately utilizable, unless such benefit is reflected in tax basis or similar item (“Tax Basis”), in which case, assuming such Tax Basis would be fully and immediately utilizable over the depreciation or amortization period, if applicable, computed on a present value basis using 60% of the Adjusted Swap Rate. If such Tax Basis not depreciable or amortizable, then the payee shall promptly refund to the payor the portion of such Payment or Payments equal to the net Income Tax benefits arising from such Tax Basis at the time such benefits are actually realized.