Common use of Amount of Indemnification Clause in Contracts

Amount of Indemnification. (a) In the case of any Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement, the relevant Xxxxx Indemnitee (x) shall notify UpREIT orally and in writing as soon as possible (so as to minimize indemnifiable costs and expenses incurred under this Agreement prior to such Income Inclusion), and (y) shall give UpREIT a written certificate setting forth in reasonable detail (i) the computation of the amount of such Income Inclusion and (ii) the computation of such amount or amounts that shall equal the sum of (1) the actual net increase in federal, applicable state and Xxxx Ridge income tax (including any interest, penalties, fines, or other additions thereto) ("Inclusion Taxes") actually payable by a Xxxxx Indemnitee on an After-Tax Basis, as a result of such Income Inclusion, determined after taking into account all deductions, credits, or other federal, applicable state and Xxxx Ridge income tax benefits then realized and resulting from (a) such Income Inclusion, (b) the incurrence of the tax liability indemnified under this Agreement, or (c) the receipt of any indemnity payment made under this Agreement (computed in accordance with Sections 3 and 6 of this Agreement), plus (2) the reasonable costs and expenses incurred by such Xxxxx Indemnitee in respect of such Income Inclusion. (b) Each Xxxxx Indemnitee agrees to act in good faith to claim any tax benefits (including filing claims for refunds and amended tax returns) and take such other actions as may be reasonable to minimize the net amount of any indemnity payment due from UpREIT hereunder and to maximize the amount of its tax savings; provided, however that such Xxxxx Indemnitee shall not be required to take any action which, in its good faith judgment, would have any material adverse business consequences to it. If UpREIT shall disagree with such computation and so requests in a written notice delivered to such Xxxxx Indemnitee within thirty (30) days following UpREIT's receipt of the certificate, such amount shall be reviewed and determined by an independent public accounting firm of national recognition selected by XX Xxxxx and reasonably acceptable to UpREIT. The costs of such verification shall be borne by UpREIT unless such verification shall result in an adjustment in UpREIT's favor by an amount of more than 5 % of the Inclusion Taxes actually due, in which case such costs shall be borne by such Xxxxx Indemnitee. Each Xxxxx Indemnitee agrees to cooperate with such independent accounting firm and to supply it with all information reasonably necessary to permit it to accomplish such review and determination. Such information shall be for the confidential use of such accountants and shall not be disclosed to UpREIT or any other person. UpREIT and each Xxxxx Indemnitee agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant to this Agreement and that matters of interpretation of this Agreement are not within the scope of the independent accounting firm's responsibilities. (c) To the extent that a Xxxxx Indemnitee recognizes an amount in respect of an Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement for any UpREIT taxable year beginning prior to the Indemnity Term, UpREIT will pay such Xxxxx Indemnitee as its indemnity obligation under this Agreement 100% of the amount described in Section 4(a). (d) Any payment due to a Xxxxx Indemnitee pursuant to this Section 4 shall be paid upon the earlier of the date that (1) the additional federal income tax in respect of such Income Inclusion is due from the Xxxxx Indemnitee, or (2) the Xxxxx Indemnitee has filed a return that reflects or would reflect such additional federal income tax; provided, however that (A) obligations of such Xxxxx Indemnitee and UpREIT under this Agreement will first be set off against each other, and (B) no payment shall be due earlier than completion of the computation of such indemnity amount as described in Section 4(a).

Amount of Indemnification. (a) In the case of any Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement, the relevant Xxxxx Hadesman Indemnitee (x) shall notify UpREIT orally and in writing as soon as possible (so as to minimize indemnifiable costs and expenses incurred under this Agreement prior to such Income Inclusion), and (y) shall give UpREIT a written certificate setting forth in reasonable detail (i) the computation of the amount of such Income Inclusion and (ii) the computation of such amount or amounts that shall equal the sum of (1) equal, on an After-Tax Basis, the actual net increase in federal, federal and applicable state and Xxxx Ridge income tax (including any interest, penalties, fines, or other additions thereto) ("Inclusion Taxes") actually payable by a Xxxxx Hadesman Indemnitee on an After-Tax Basis, as a result of such Income Inclusion, determined after (1) offsetting such Income Inclusion by the amount of such Hadesman Indemnitee's "passive losses" under Code Section 469(d) and the Regulations from the activity in respect of the Hadesman Partnerships, and (to the extent not duplicative) "suspended losses" in respect of such activity under Code Section 465 and the Regulations, each as shown on Exhibit B to be attached hereto (to the extent such losses would be available under the Code and Regulations and have not already been taken into account in offsetting other Income Inclusions indemnifiable under this Agreement), and (2) taking into account all deductions, credits, or other federal, federal and applicable state and Xxxx Ridge income tax benefits then realized and resulting from (a) such Income Inclusion, (b) the incurrence of the tax liability indemnified under this Agreement, or (c) the receipt of any indemnity payment made under this Agreement (computed in accordance with Sections 3 and 6 of this Agreement), plus (2) the reasonable costs and expenses incurred by such Xxxxx Indemnitee in respect of such Income Inclusion. (b) Each Xxxxx Hadesman Indemnitee agrees to act in good faith to claim any tax benefits (including filing claims for refunds and amended tax returns) and take such other actions as may be reasonable to minimize the net amount of any indemnity payment due from UpREIT hereunder and to maximize the amount of its tax savings; provided, however however, that such Xxxxx Hadesman Indemnitee shall not be required to take any action which, in its good faith judgment, would have any material adverse business consequences to it. If UpREIT shall disagree with such computation and so requests in a written notice delivered to such Xxxxx Hadesman Indemnitee within thirty (30) days following UpREIT's receipt of the certificate, such amount shall be reviewed and determined by an independent public accounting firm of national recognition selected by XX Xxxxx Hadesman and reasonably acceptable to UpREIT. The costs of such verification shall be borne by UpREIT unless such verification shall result in an adjustment in UpREIT's favor by an amount of more than 5 5% of the Inclusion Taxes actually due, in which case such costs shall be borne by such Xxxxx Hadesman Indemnitee. Each Xxxxx Hadesman Indemnitee agrees to cooperate with such independent accounting firm and to supply it with all information reasonably necessary to permit it to accomplish such review and determination. Such information shall be for the confidential use of such accountants and shall not be disclosed to UpREIT or any other person. UpREIT and each Xxxxx Hadesman Indemnitee agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant to this Agreement and that matters of interpretation of this Agreement are not within the scope of the independent accounting firm's responsibilities. (c) To the extent that a Xxxxx Indemnitee recognizes an amount in respect of an Income Inclusion that is indemnifiable pursuant to Section 3 3(c) of this Agreement for any UpREIT taxable year beginning prior to the Indemnity TermAgreement, UpREIT will pay such Xxxxx each Hadesman Indemnitee as its indemnity obligation under this Agreement 100% a percentage of the amount described in Section 4(a). (d) Any payment due to a Xxxxx Indemnitee pursuant to this Section 4 shall be paid based upon the earlier period in which the relevant taxable sale or disposition of the date that (1) the additional federal income tax in respect Hadesman Properties occurs, as follows: Percentage of such Income Inclusion is due from the Xxxxx Indemnitee, or (2) the Xxxxx Indemnitee has filed a return that reflects or would reflect such additional federal income tax; provided, however that (A) obligations of such Xxxxx Indemnitee and UpREIT under this Agreement will first be set off against each other, and (B) no payment shall be due earlier than completion of the computation of such indemnity amount as described Amount Calculated in Section Period Ending 4(a).) ---------------------------------------------- ----------------------------------------------

Amount of Indemnification. (a) In the case of any Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement, the relevant Xxxxx Hadesman Indemnitee (x) shall notify UpREIT orally and in writing as soon as possible (so as to minimize indemnifiable costs and expenses incurred under this Agreement prior to such Income Inclusion), and (y) shall give UpREIT a written certificate setting forth in reasonable detail (i) the computation of the amount of such Income Inclusion and (ii) the computation of such amount or amounts that shall equal the sum of (1) equal, on an After-Tax Basis, the actual net increase in federal, federal and applicable state and Xxxx Ridge income tax (including any interest, penalties, fines, or other additions thereto) ("Inclusion Taxes") actually payable by a Xxxxx Hadesman Indemnitee on an After-Tax Basis, as a result of such Income Inclusion, determined after (1) offsetting such Income Inclusion by the amount of such Hadesman Indemnitee's "passive losses" under Code Section 469(d) and the Regulations from the activity in respect of the Hadesman Partnerships, and (to the extent not duplicative) "suspended losses" in respect of such activity under Code Section 465 and the Regulations, each as shown on Exhibit B to be attached hereto (to the extent such losses would be available under the Code and Regulations and have not already been taken into account in offsetting other Income Inclusions indemnifiable under this Agreement), and (2) taking into account all deductions, credits, or other federal, federal and applicable state and Xxxx Ridge income tax benefits then realized and resulting from (a) such Income Inclusion, (b) the incurrence of the tax liability indemnified under this Agreement, or (c) the receipt of any indemnity payment made under this Agreement (computed in accordance with Sections 3 and 6 of this Agreement), plus (2) the reasonable costs and expenses incurred by such Xxxxx Indemnitee in respect of such Income Inclusion. (b) Each Xxxxx Hadesman Indemnitee agrees to act in good faith to claim any tax benefits (including filing claims for refunds and amended tax returns) and take such other actions as may be reasonable to minimize the net amount of any indemnity payment due from UpREIT hereunder and to maximize the amount of its tax savings; provided, however however, that such Xxxxx Hadesman Indemnitee shall not be required to take any action which, in its good faith judgment, would have any material adverse business consequences to it. If UpREIT shall disagree with such computation and so requests in a written notice delivered to such Xxxxx Hadesman Indemnitee within thirty (30) days following UpREIT's receipt of the certificate, such amount shall be reviewed and determined by an independent public accounting firm of national recognition selected by XX Xxxxx Hadesman and reasonably acceptable to UpREIT. The costs of such verification shall be borne by UpREIT unless such verification shall result in an adjustment in UpREIT's favor by an amount of more than 5 5% of the Inclusion Taxes actually due, in which case such costs shall be borne by such Xxxxx Hadesman Indemnitee. Each Xxxxx Hadesman Indemnitee agrees to cooperate with such independent accounting firm and to supply it with all information reasonably necessary to permit it to accomplish such review and determination. Such information shall be for the confidential use of such accountants and shall not be disclosed to UpREIT or any other person. UpREIT and each Xxxxx Hadesman Indemnitee agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant to this Agreement and that matters of interpretation of this Agreement are not within the scope of the independent accounting firm's responsibilities. (c) To the extent an Income Inclusion is indemnifiable pursuant to Section 3(c) of this Agreement, UpREIT will pay each Hadesman Indemnitee as its indemnity obligation under this Agreement a percentage of the amount described in Section 4(a) based upon the period in which the relevant taxable sale or disposition of Hadesman Properties occurs, as follows: Period Ending Percentage of Amount Calculated ------------- in Section 4(a) --------------- December 31, 1998 100% December 31, 1999 90% December 31, 2000 80% December 31, 2001 70% December 31, 2002 60% December 31, 2003 50% December 31, 2004 40% December 31, 2005 30% December 31, 2006 20% December 31, 2007 10% (d) To the extent that a Xxxxx Hadesman Indemnitee recognizes an amount in respect of an Income Inclusion that is indemnifiable pursuant to Section 3 3(a), 3(b), 3(d), 3(e) or 3(f) of this Agreement for any UpREIT taxable year beginning prior to ending within the Indemnity Term, UpREIT will pay such Xxxxx Hadesman Indemnitee as its indemnity obligation under this Agreement 100% of the amount described in Section 4(a). (de) Any payment due to a Xxxxx Hadesman Indemnitee pursuant to this Section 4 shall be paid upon the earlier of the date that (1) the additional federal income tax in respect of such Income Inclusion is due from the Xxxxx Hadesman Indemnitee, or (2) the Xxxxx Hadesman Indemnitee has filed a return that reflects or would reflect such additional federal income tax; provided, however however, that (A) obligations of such Xxxxx Hadesman Indemnitee and UpREIT under this Agreement will first be set off against each other, and (B) no payment shall be due earlier than completion of the computation of such indemnity amount as described in Section 4(a).

Amount of Indemnification. (a) In the case of any Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement, the relevant Xxxxx Indemnitee (x) shall notify UpREIT orally and in writing as soon as possible (so as to minimize indemnifiable costs and expenses incurred under this Agreement prior to such Income Inclusion), and (y) shall give UpREIT a written certificate setting forth in reasonable detail (i) the computation of the amount of such Income Inclusion and (ii) the computation of such amount or amounts that shall equal the sum of (1) the actual net increase in federal, applicable state and Xxxx Ridge income tax (including any interest, penalties, fines, or other additions thereto) ("Inclusion Taxes") actually payable by a Xxxxx Indemnitee on an After-Tax Basis, as a result of such Income Inclusion, determined after taking into account all deductions, credits, or other federal, applicable state and Xxxx Ridge income tax benefits then realized and resulting from (a) such Income Inclusion, (b) the incurrence of the tax liability indemnified under this Agreement, or (c) the receipt of any indemnity payment made under this Agreement (computed in accordance with Sections 3 and 6 of this Agreement), plus (2) the reasonable costs and expenses incurred by such Xxxxx Indemnitee in respect of such Income Inclusion. (b) Each Xxxxx Indemnitee agrees to act in good faith to claim any tax benefits (including filing claims for refunds and amended tax returns) and take such other actions as may be reasonable to minimize the net amount of any indemnity payment due from UpREIT hereunder and to maximize the amount of its tax savings; provided, however however, that such Xxxxx Indemnitee shall not be required to take any action which, in its good faith judgment, would have any material adverse business consequences to it. If UpREIT shall disagree with such computation and so requests in a written notice delivered to such Xxxxx Indemnitee within thirty (30) days following UpREIT's receipt of the certificate, such amount shall be reviewed and determined by an independent public accounting firm of national recognition selected by XX Xxxxx and reasonably acceptable to UpREIT. The costs of such verification shall be borne by UpREIT unless such verification shall result in an adjustment in UpREIT's favor by an amount of more than 5 5% of the Inclusion Taxes actually due, in which case such costs shall be borne by such Xxxxx Indemnitee. Each Xxxxx Indemnitee agrees to cooperate with such independent accounting firm and to supply it with all information reasonably necessary to permit it to accomplish such review and determination. Such information shall be for the confidential use of such accountants and shall not be disclosed to UpREIT or any other person. UpREIT and each Xxxxx Indemnitee agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant to this Agreement and that matters of interpretation of this Agreement are not within the scope of the independent accounting firm's responsibilities. (c) To the extent that a Xxxxx Indemnitee recognizes an amount in respect of an Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement for any UpREIT taxable year beginning prior to the Indemnity Term, UpREIT will pay such Xxxxx Indemnitee as its indemnity obligation under this Agreement 100% of the amount described in Section 4(a). (d) Any payment due to a Xxxxx Indemnitee pursuant to this Section 4 shall be paid upon the earlier of the date that (1) the additional federal income tax in respect of such Income Inclusion is due from the Xxxxx Indemnitee, or (2) the Xxxxx Indemnitee has filed a return that reflects or would reflect such additional federal income tax; provided, however however, that (A) obligations of such Xxxxx Indemnitee and UpREIT under this Agreement will first be set off against each other, and (B) no payment shall be due earlier than completion of the computation of such indemnity amount as described in Section 4(a).

Amount of Indemnification. (a) In the case of any Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement, the relevant Xxxxx Indemnitee (x) shall notify UpREIT orally and in writing as soon as possible (so as to minimize indemnifiable costs and expenses incurred under this Agreement prior to such Income Inclusion), and (y) shall give UpREIT a written certificate setting forth in reasonable detail (i) the computation of the amount of such Income Inclusion and (ii) the computation of such amount or amounts that shall equal the sum of (1) the actual net increase in federal, applicable state and Xxxx Ridge income tax (including any interest, penalties, fines, or other additions thereto) ("Inclusion Taxes") actually payable by a Xxxxx Indemnitee on an After-Tax Basis, as a result of such Income Inclusion, determined after taking into account all deductions, credits, or other federal, applicable state and Xxxx Ridge income tax benefits then realized and resulting from (a) such Income Inclusion, (b) the incurrence of the tax liability indemnified under this Agreement, or (c) the receipt of any indemnity payment made under this Agreement (computed in accordance with Sections 3 and 6 of this Agreement), plus (2) the reasonable costs and expenses incurred by such Xxxxx Indemnitee in respect of such Income Inclusion. (b) Each Xxxxx Indemnitee agrees to act in good faith to claim any tax benefits (including filing claims for refunds and amended tax returns) and take such other actions as may be reasonable to minimize the net amount of any indemnity payment due from UpREIT hereunder and to maximize the amount of its tax savings; provided, however however, that such Xxxxx Indemnitee shall not be required to take any action which, in its good faith judgment, would have any material adverse business consequences to it. If UpREIT shall disagree with such computation and so requests in a written notice delivered to such Xxxxx Indemnitee within thirty (30) days following UpREIT's receipt of the certificate, such amount shall be reviewed and determined by an independent public accounting firm of national recognition selected by XX Xxxxx and reasonably acceptable to UpREIT. The costs of such verification shall be borne by UpREIT unless such verification shall result in an adjustment in UpREIT's favor by an amount of more than 5 % of the Inclusion Taxes actually due, in which case such costs shall be borne by such Xxxxx Indemnitee. Each Xxxxx Indemnitee agrees to cooperate with such independent accounting firm and to supply it with all information reasonably necessary to permit it to accomplish such review and determination. Such information shall be for the confidential use of such accountants and shall not be disclosed to UpREIT or any other person. UpREIT and each Xxxxx Indemnitee agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant to this Agreement and that matters of interpretation of this Agreement are not within the scope of the independent accounting firm's responsibilities. (c) To the extent that a Xxxxx Indemnitee recognizes an amount in respect of an Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement for any UpREIT taxable year beginning prior to the Indemnity Term, UpREIT will pay such Xxxxx Indemnitee as its indemnity obligation under this Agreement 100% of the amount described in Section 4(a). (d) Any payment due to a Xxxxx Indemnitee pursuant to this Section 4 shall be paid upon the earlier of the date that (1) the additional federal income tax in respect of such Income Inclusion is due from the Xxxxx Indemnitee, or (2) the Xxxxx Indemnitee has filed a return that reflects or would reflect such additional federal income tax; provided, however however, that (A) obligations of such Xxxxx Indemnitee and UpREIT under this Agreement will first be set off against each other, and (B) no payment shall be due earlier than completion of the computation of such indemnity amount as described in Section 4(a).

Amount of Indemnification. (a) In The amount of any Covered ServiceWare Losses or Covered Mollxx Xxxses shall be determined (i) net of any benefit (including any tax benefit if and when actually realized as an offset by any tax burden resulting from the matter for which a claim is asserted or from the indemnification; provided,that no indemnified party shall be required solely for the purpose of realizing a benefit to take any tax position that could have an adverse effect on such indemnified party if taken and (ii) net of any amounts recovered or recoverable in respect thereof or in connection therewith under any one or more policies of insurance maintained by ServiceWare or the Continuing Corporation, on the one hand, or a Mollxx Xxxder, on the other hand, as the case may be, or any third party by or on behalf of (x) ServiceWare or the Continuing Corporation (or their successors or assigns) in the case of any Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement, the relevant Xxxxx Indemnitee (x) shall notify UpREIT orally and in writing as soon as possible (so as to minimize indemnifiable costs and expenses incurred under this Agreement prior to such Income Inclusion), and a Covered ServiceWare Loss or (y) a Mollxx Xxxder (or its successor or assigns) in the case of a Covered Mollxx Xxxs (b) Neither ServiceWare nor any Mollxx Xxxder shall give UpREIT be entitled to any indemnity for any Covered ServiceWare Loss or Covered Mollxx Xxxs, as the case may be, to the extent that the existence of such loss, the breach of covenant or warranty or the falsity of the representation upon which such loss would be based is disclosed in the Mollxx Xxxclosure Schedule (in the case of a Covered ServiceWare Loss) or the ServiceWare Disclosure Schedule (in the case of a Covered Mollxx Xxxs) or which is disclosed in a written certificate setting forth notice furnished to the indemnified party prior to the Closing; provided, however, that any such misrepresentation or breach of warranty or covenant so disclosed after the execution and delivery of this Agreement and prior to the Closing shall not affect the right of ServiceWare or Mollxx, xx the case may be, to elect not to close the transactions contemplated by this Agreement to the extent provided in reasonable detail Article VII hereof (it being understood and agreed that if, despite such right of the ServiceWare or Mollxx xx elect not to close by reason 41 42 of the misrepresentation or breach so disclosed, ServiceWare or Mollxx xxxertheless elects to close, thereby waiving such misrepresentation or breach, ServiceWare or the Mollxx Xxxder, as the case may be, shall thereafter have no indemnity right by reason of any such misrepresentation or breach of warranty or covenant). (c) In the event that the effect of any misrepresentation of Mollxx xx ServiceWare or any breach of warranty or covenant of Mollxx xx ServiceWare contained in this Agreement or any document executed and delivered pursuant hereto is that the amount of assets of Mollxx xx ServiceWare has been overstated or the amount of liabilities of Mollxx xx ServiceWare has been understated as of the end of any fiscal period, the Covered ServiceWare Losses or Covered Mollxx Xxxses, as the case may be, caused by such overstatement or understatement shall in no event exceed the net amount of such overstatement and/or understatement, without adjustment for estimated impacts on future earnings. (d) In the event of any Covered ServiceWare Loss, the Mollxx Xxxders shall be entitled to credit or offset against any such liability an amount equal to (i) the computation any windfall and other contingent assets of Mollxx, xxd the amount of any windfall reduction of non-cancellable contractual obligations payable by Mollxx (xxthout a corresponding loss of benefit) resulting from an occurrence prior to the Closing Date, which in any such Income Inclusion case is not recorded as an asset or liability on the Mollxx Xxxance Sheet and in respect of which ServiceWare or the Continuing Corporation derives a financial benefit after the Closing Date, and (ii) the computation net overstated liabilities of Mollxx. Xx the event of any Covered Mollxx Xxxs, ServiceWare shall be entitled to credit or offset against any such liability an amount or amounts that shall equal to (i) any windfall and other contingent assets of ServiceWare, and the sum amount of (1) the actual net increase in federal, applicable state and Xxxx Ridge income tax (including any interest, penalties, fines, or other additions thereto) ("Inclusion Taxes") actually windfall reduction of non-cancellable contractual obligations payable by ServiceWare (without a Xxxxx Indemnitee on an After-Tax Basis, as a result corresponding loss of such Income Inclusion, determined after taking into account all deductions, credits, or other federal, applicable state and Xxxx Ridge income tax benefits then realized and benefit) resulting from (a) an occurrence prior to the Closing Date, which in any such Income Inclusion, (b) case is not recorded as an asset or liability on the incurrence of the tax liability indemnified under this Agreement, or (c) the receipt of any indemnity payment made under this Agreement (computed in accordance with Sections 3 ServiceWare Balance Sheet and 6 of this Agreement), plus (2) the reasonable costs and expenses incurred by such Xxxxx Indemnitee in respect of such Income Inclusionwhich ServiceWare or the Continuing Corporation derives a financial benefit after the Closing Date, and (ii) the net overstated liabilities of ServiceWare. (be) Each Xxxxx Indemnitee agrees It is specifically understood and agreed that in the event a misrepresentation or breach of warranty or covenant is discovered by ServiceWare or a Mollxx Xxxder after the Closing, the remedy of the ServiceWare or such Mollxx Xxxder, as the case may be, shall be limited to act the indemnity forth in good faith to claim any tax benefits (including filing claims for refunds this Article IX and amended tax returns) and take such other actions as may be reasonable to minimize the net amount of any indemnity payment due from UpREIT hereunder and to maximize the amount of its tax savings; provided, however that such Xxxxx Indemnitee party shall not be required entitled to take any action which, in its good faith judgment, would have any material adverse business consequences to it. If UpREIT shall disagree with such computation and so requests in a written notice delivered to such Xxxxx Indemnitee within thirty (30) days following UpREIT's receipt rescission of the certificate, such amount shall be reviewed and determined by an independent public accounting firm of national recognition selected by XX Xxxxx and reasonably acceptable to UpREIT. The costs of such verification shall be borne by UpREIT unless such verification shall result in an adjustment in UpREIT's favor by an amount of more than 5 % of the Inclusion Taxes actually due, in which case such costs shall be borne by such Xxxxx Indemnitee. Each Xxxxx Indemnitee agrees to cooperate with such independent accounting firm and to supply it with all information reasonably necessary to permit it to accomplish such review and determination. Such information shall be for the confidential use of such accountants and shall not be disclosed to UpREIT this Agreement or any other person. UpREIT and each Xxxxx Indemnitee agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant to this Agreement and that matters of interpretation of this Agreement are not within the scope of the independent accounting firm's responsibilitiesdamages. (c) To the extent that a Xxxxx Indemnitee recognizes an amount in respect of an Income Inclusion that is indemnifiable pursuant to Section 3 of this Agreement for any UpREIT taxable year beginning prior to the Indemnity Term, UpREIT will pay such Xxxxx Indemnitee as its indemnity obligation under this Agreement 100% of the amount described in Section 4(a). (d) Any payment due to a Xxxxx Indemnitee pursuant to this Section 4 shall be paid upon the earlier of the date that (1) the additional federal income tax in respect of such Income Inclusion is due from the Xxxxx Indemnitee, or (2) the Xxxxx Indemnitee has filed a return that reflects or would reflect such additional federal income tax; provided, however that (A) obligations of such Xxxxx Indemnitee and UpREIT under this Agreement will first be set off against each other, and (B) no payment shall be due earlier than completion of the computation of such indemnity amount as described in Section 4(a).