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.

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.

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.

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.