Common use of Calculation of Indemnity Payments Clause in Contracts

Calculation of Indemnity Payments. The amount of any Loss for which indemnification is provided under this Article X shall be net of any insurance amounts and amounts recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties with respect to such Loss provided that no Parent Indemnified Party shall have any obligation to seek or pursue any insurance recoveries (other than under those policies covering the Company and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit of any such insurance or other recovery at any time in its sole discretion). However, in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be (i) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (ii) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-up for such increase). For purposes of calculating Losses hereunder with respect to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignored.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article X VIII shall be net of any insurance amounts and amounts recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties Party under third party insurance policies with respect to such Loss provided that no Parent Indemnified Party shall have any obligation to seek or pursue any insurance recoveries (other than under those policies covering the Company and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit of any such insurance or other recovery at any time in its sole discretion). However, in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be (i) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (iia) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-grossed up for such increase) and (b) reduced to take account of any net Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such indemnified amount. 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 of any indemnity payment hereunder or the incurrence or payment of any indemnified amount. Following payment by the Indemnifying Party of any Losses, if the Indemnified Party receives any third party insurance recovery in respect of such Losses, the Indemnified Party shall promptly pay over to the Indemnifying Party the amount of such insurance recovery (but not more than the amount of such Losses). For purposes The Losses paid by the Indemnifying Party in respect of calculating Losses which there has been a third party insurance recovery that the Indemnified Party has paid over to the Indemnifying Party in accordance with the preceding sentence shall not be counted toward the Indemnifying Party’s maximum aggregate liability under Section 8.04. The Indemnified Party agrees to use reasonable best efforts to pursue and collect on any recovery available from any insurance policy available to it and to net any such recovery against any claim for indemnification hereunder with respect or, if an indemnification claim has already been resolved, against the amount paid pursuant to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignoredsuch resolution.

Calculation of Indemnity Payments. The amount of any Loss for which indemnification is provided under this Article X shall VII will be (a) net of any insurance amounts and amounts actually recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties Indemnitee under insurance policies with respect to such Loss provided that no Parent Indemnified Party shall have any obligation (less the cost to seek or pursue any insurance recoveries collect the proceeds of such insurance), (other than under those policies covering b) reduced by the Company and its Subsidiaries before actual amount by which the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit Taxes of any the Indemnitee are reduced by such insurance or other recovery at any time in its sole discretion). However, Loss in the event that tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi-annually) of the amount by which the Taxes of the Indemnitee would be reduced by such Loss if the reduction in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Parent Indemnified Party does not seek Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return, and (c) increased by the actual amount by which the Taxes of the Indemnitee are increased by such Loss in the tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi­annually) of the amount by which the Taxes of the Indemnitee would be increased by such Loss if the increase in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return. If any Loss related to a claim by an Indemnitee is covered by one or more third-party (non-captive) insurance policies held by the Indemnitee, the Indemnitee will use Commercially Reasonable Efforts to pursue any insurance under policies covering claims against the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative applicable insurers for coverage of such fact in writing and Loss under such policies. If the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have Indemnitee actually receives a full or partial recovery under such insurance policies or against any other third partiesfollowing payment of indemnification by the Indemnifying Party in respect of such Loss, then the Indemnitee will refund amounts received from the Indemnifying Party up to the amount of indemnification actually received from the Indemnifying Party with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be (i) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (ii) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-up for such increase). For purposes of calculating Losses hereunder with respect to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignoredLoss.

Calculation of Indemnity Payments. The If any Indemnitee --------------------------------- subsequently realizes a tax benefit by reason of any payment of an indemnified Tax pursuant to this Article VII, which benefit had not previously been taken ----------- into account in computing such payment, such Indemnitee shall pay Lessees when such tax benefit is actually utilized (but not before Lessees shall have made all payments and indemnification theretofore due to such Indemnitee pursuant to the Operative Documents) an amount equal to the lesser of (a) the sum of (i) an amount equal to such tax benefit, plus (ii) an amount equal to any other tax benefit realized and actually utilized by such Indemnitee as the result of any payment made by such Indemnitee pursuant to this sentence, and (b) the amount of such payment by Lessees to such Indemnitee and any Loss for which indemnification is provided under other payment by Lessees to such Indemnitee theretofore made pursuant to this Article X shall be net of any insurance amounts and amounts recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties ------- VII with respect to such Loss provided Tax, reduced by other amounts previously paid by such --- Indemnitee to Lessees pursuant to this Article VII; provided, however, that no Parent Indemnified Party ----------- -------- ------- notwithstanding the foregoing portions of this sentence, such Indemnitee shall not be obligated to make any payment to Lessees pursuant to this sentence if and for so long as an Event of Default shall have occurred and be continuing, but shall promptly make such payment once all Events of Default shall no longer be continuing; it being intended that such Indemnitee should not realize a net tax benefit pursuant to this Article VII unless Lessees shall first have been made ----------- whole for any obligation payments by it to seek such Indemnitee pursuant to this Article VII. ----------- Any Taxes that are imposed on any Indemnitee as a result of a disallowance or pursue any insurance recoveries (other than under those policies covering the Company and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit reduction of any such insurance or other recovery at any time in its sole discretion). However, tax benefit taken into account in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X prior sentence shall be treated as an adjustment a Tax for which Lessees are obligated to indemnify such Indemnitee pursuant to the Purchase Price for Tax purposes provisions of Article VII hereof without regard to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be Sections 7.02 ----------- (iother than subsections (f) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (iig) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-up for such increase). For purposes of calculating Losses hereunder with respect to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants thereof) and agreements shall be ignored7.04.

Calculation of Indemnity Payments. The amount of any Loss Holdco Indemnified Costs and ConAgra Indemnified Costs for which indemnification is provided under this Article X 12 shall be net of any insurance amounts and amounts recovered from other third parties when and to the extent actually received by the Parent applicable Indemnified Parties Party from any contribution or counterclaims or under any insurance policies (in each case, after deducting therefrom all out-of-pocket costs, expenses and Taxes incurred in connection with the collection and realization of such amounts) with respect to such Loss provided that no Parent Holdco Indemnified Party shall have any obligation to seek Costs or pursue any insurance recoveries (other than under those policies covering the Company ConAgra Indemnified Costs, as applicable, and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit of any such insurance or other recovery at any time in its sole discretion). However, in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be (i) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (ii) increased to take account of any net Income Tax cost actually incurred by the applicable Indemnified Party arising from the receipt or accrual of indemnity payments hereunder attributable to fines and penalties incurred by Holdco or its Affiliates that are not deductible for Income Tax purposes (i.e., grossed-grossed up for Income Taxes imposed on such increase). For purposes In computing the amount of calculating Losses any such Tax cost, the applicable 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 of any indemnity payment hereunder with respect or the incurrence or payment of any indemnified amount. The applicable Indemnified Party agrees to determining whether use reasonable best efforts to pursue and collect on any recovery available to it and to net any such recovery against any claim for indemnification hereunder or, if an indemnification claim has already been resolved, against the Losses exceed amount 100 paid by the Deductible for purposes Indemnifying Party pursuant to such resolution. After it has been determined that there has been a breach of a representation or warranty, the amount of Holdco Indemnified Costs recoverable under Section 10.6(a), 12.1.1(e) shall be determined without regard to any materiality qualification contained therein or to whether or not any such breach results or may result in a Company Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignoredEffect.

Calculation of Indemnity Payments. The amount of any Loss Holdco Indemnified Costs and ConAgra Indemnified Costs for which indemnification is provided under this Article X 12 shall be net of any insurance amounts and amounts recovered from other third parties when and to the extent actually received by the Parent applicable Indemnified Parties Party from any contribution or counterclaims or under any insurance policies (in each case, after deducting therefrom all out-of-pocket costs, expenses and Taxes incurred in connection with the collection and realization of such amounts) with respect to such Loss provided that no Parent Holdco Indemnified Party shall have any obligation to seek Costs or pursue any insurance recoveries (other than under those policies covering the Company ConAgra Indemnified Costs, as applicable, and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit of any such insurance or other recovery at any time in its sole discretion). However, in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be (i) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (ii) increased to take account of any net Income Tax cost actually incurred by the applicable Indemnified Party arising from the receipt or accrual of indemnity payments hereunder attributable to fines and penalties incurred by Holdco or its Affiliates that are not deductible for Income Tax purposes (i.e., grossed-grossed up for Income Taxes imposed on such increase). For purposes In computing the amount of calculating Losses any such Tax cost, the applicable 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 of any indemnity payment hereunder with respect or the incurrence or payment of any indemnified amount. The applicable Indemnified Party agrees to determining whether use reasonable best efforts to pursue and collect on any recovery available to it and to net any such recovery against any claim for indemnification hereunder or, if an indemnification claim has already been resolved, against the Losses exceed amount paid by the Deductible for purposes Indemnifying Party pursuant to such resolution. After it has been determined that there has been a breach of a representation or warranty, the amount of Holdco Indemnified Costs recoverable under Section 10.6(a), 12.1.1(e) shall be determined without regard to any materiality qualification contained therein or to whether or not any such breach results or may result in a Company Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignoredEffect.

Calculation of Indemnity Payments. The amount of any Loss for which indemnification is provided Losses payable under this Article X XII by the Indemnitor shall be net of reduced by (a) any insurance and all amounts and amounts recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties Indemnitee under applicable insurance policies (less (i) the cost and expense of pursuing such insurance recovery, (ii) the deductible associated therewith and (iii) the amount of all retro-premium obligations and reasonably anticipated premium increases resulting from such recovery) or from any other Person alleged to be responsible therefor (less the cost and expense of pursuing such recoveries), and (b) any Tax benefits actually realized by the Indemnitee or any member of its Affiliated Group 106 prior to the time such Losses are payable by the Indemnitor and attributable to such Losses. If the Indemnitee receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses or actually realizes any Tax benefits attributable to such Losses, subsequent to an indemnification payment by the Indemnitor (and in the case of any such Tax benefits, the Tax benefit is actually realized by the Indemnitee in the Tax year of the Loss or the immediately following Tax year), then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received or actually realized by the Indemnitee, net of any expenses incurred by such Indemnitee in collecting such amount. In connection with any Losses for which an Indemnitee may seek indemnification under this Article XII, such Indemnitee will in its reasonable discretion in determining whether to seek recovery under available insurance coverage; provided, however, that the Indemnitee shall have no obligation to first submit or to collect upon any applicable insurance coverage as a precondition to making a claim for indemnification hereunder or obtaining indemnification for Losses therefor, and the parties hereto agree, without limiting any other rights any Indemnitor may have against any Indemnitee, not to delay in any manner the payment to any Indemnitee of such indemnification based on the Indemnitee’s failure to have sought or obtained recovery under available insurance coverage at the time any such claim is made. With respect to the Tax benefits described above, which for avoidance of doubt are limited to Tax benefits actually realized by the Indemnitee in the Tax year of the Loss or the Tax year immediately following the Tax year of the Loss (such Tax benefits, the “Realized Tax Benefits”), the following shall apply: (i) the aggregated amount of such Realized Tax Benefits with respect to any Loss shall in no event exceed the indemnification payment actually received from the Indemnitor with respect to such Loss provided that no Parent Indemnified Party Loss; (ii) such Realized Tax Benefits shall be calculated in good faith by the Indemnitee and the Indemnitee shall have any no obligation to seek disclose Tax Returns or pursue any insurance recoveries other confidential Tax information in support of such calculation; (other than under those policies covering iii) such good faith calculation of the Company Realized Tax Benefits shall be made by computing the amount of Taxes before and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit after inclusion of any Tax items attributable to the Losses for which the indemnification payment was made and by treating such insurance Tax items as the last items claimed for any taxable period; and (iv) if subsequent Tax adjustments are made for any taxable period as a result of or in settlement of any audit or other recovery at administrative proceeding that results in any time in its sole discretion). However, reduction in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X Realized Tax Benefit, the Indemnitor shall be (i) reduced by promptly refund the difference between the amount of the net Realized Tax benefit actually realized Benefit paid by the Indemnified Party by reason of Indemnitee and the amount that should have been paid after taking into account such Loss and adjustments (ii) increased to take account of any net Tax cost actually incurred again, all as determined in good faith by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-up for such increaseIndemnitee). For purposes of calculating Losses hereunder with respect to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignored.

Calculation of Indemnity Payments. The amount of any Loss for which indemnification is provided under this Article X shall VII will be (a) net of any insurance amounts and amounts actually recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties Indemnitee under insurance policies with respect to such Loss provided that no Parent Indemnified Party shall have any obligation (less the cost to seek or pursue any insurance recoveries collect the proceeds of such insurance), (other than under those policies covering b) reduced by the Company and its Subsidiaries before actual amount by which the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit Taxes of any the Indemnitee are reduced by such insurance or other recovery at any time in its sole discretion). However, Loss in the event that tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi-annually) of the amount by which the Taxes of the Indemnitee would be reduced by such Loss if the reduction in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Parent Indemnified Party does not seek Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return, and (c) increased by the actual amount by which the Taxes of the Indemnitee are increased by such Loss in the tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi­annually) of the amount by which the Taxes of the Indemnitee would be increased by such Loss if the increase in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return. If any Loss related to a claim by an Indemnitee is covered by one or more third-party (non-captive) insurance policies held by the Indemnitee, the Indemnitee will use Commercially Reasonable Efforts to pursue any insurance under policies covering claims against the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative applicable insurers for coverage of such fact in writing and Loss under such policies. If the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have Indemnitee actually receives a full or partial recovery under such insurance policies or against any other third partiesfollowing payment of indemnification by the Indemnifying Party in respect of such Loss, then the Indemnitee will refund amounts received from the Indemnifying Party up to the amount of indemnification actually received from the Indemnifying Party with respect to any matter giving rise to a claim such Loss. 7.04 Procedures for indemnification hereunderDefense, Settlement and Indemnification of Direct or Third-Party Claims. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be (i) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (ii) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-up for such increasec). For purposes of calculating Losses hereunder with respect to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignored.

Calculation of Indemnity Payments. The amount of any Loss for which indemnification is provided under this Article X shall VII will be (a) net of any insurance amounts and amounts actually recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties Indemnitee under insurance policies with respect to such Loss provided that no Parent Indemnified Party shall have any obligation (less the cost to seek or pursue any insurance recoveries collect the proceeds of such insurance), (other than under those policies covering b) reduced by the Company and its Subsidiaries before actual amount by which the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit Taxes of any the Indemnitee are reduced by such insurance or other recovery at any time in its sole discretion). However, Loss in the event that tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi-annually) of the amount by which the Taxes of the Indemnitee would be reduced by such Loss if the reduction in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Parent Indemnified Party does not seek Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return, and (c) increased by the actual amount by which the Taxes of the Indemnitee are increased by such Loss in the tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi­annually) of the amount by which the Taxes of the Indemnitee would be increased by such Loss if the increase in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return. If any Loss related to a claim by an Indemnitee is covered by one or more third-party (non-captive) insurance policies held by the Indemnitee, the Indemnitee will use Commercially Reasonable Efforts to pursue any insurance under policies covering claims against the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative applicable insurers for coverage of such fact in writing and Loss under such policies. If the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have Indemnitee actually receives a full or partial recovery under such insurance policies or against any other third partiesfollowing payment of indemnification by the Indemnifying Party in respect of such Loss, then the Indemnitee will refund amounts - 38 - received from the Indemnifying Party up to the amount of indemnification actually received from the Indemnifying Party with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be (i) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (ii) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-up for such increase). For purposes of calculating Losses hereunder with respect to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignoredLoss.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article X shall be net of any insurance amounts and amounts recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties with respect to such Loss provided that no Parent Indemnified Party shall have any obligation to seek or pursue any insurance recoveries (other than under those policies covering the Company and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit of any such insurance or other recovery at any time in its sole discretion). However, in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X 9 shall be (i) reduced by the amount of the net Tax benefit any amounts actually realized received by the Indemnified Party by reason of under third party insurance policies with respect to such Loss and Loss, (ii) increased to take account of by any net Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-grossed up for such increase)) in the taxable year in which the indemnity payment is received and (iii) reduced by any Tax benefit actually realized by the Indemnified Party (in the form of a cash refund or reduction in cash Taxes otherwise payable) as a result of such Loss by the Indemnified Party in the taxable year such Loss is incurred or the immediately succeeding taxable year. 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 of any indemnity payment hereunder or the incurrence or payment of any indemnified amount. In computing the amount of any such Tax benefit actually realized, such Tax benefit shall be net of any Tax detriment arising from the receipt of any indemnification payment. For purposes of calculating the amount of Losses hereunder with respect incurred out of or relating to determining whether the Losses exceed the Deductible any breach or inaccuracy of a representation or warranty in this Agreement or any certificate or document delivered hereunder, but not for purposes of Section 10.6(adetermining whether or not a breach or inaccuracy has occurred, the references to “Business Material Adverse Effect,” “Purchaser Material Adverse Effect,” “material” or other materiality qualifications (or correlative terms), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignoreddisregarded.

Calculation of Indemnity Payments. The amount of any Loss for which indemnification is provided under this Article X shall IX will be net of any insurance amounts and amounts recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties Party under third party insurance policies and any indemnity, contribution or other similar payment actually received by the Indemnified Party in each case with respect to such Loss provided that no Parent Indemnified Party shall have any obligation to seek or pursue any insurance recoveries (other than under those policies covering Loss. In addition, the Company and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit of any such insurance or other recovery at any time in its sole discretion). However, in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall IX will be (i) reduced by the amount net of the net any Tax benefit actually realized (in the form of a cash refund or reduction in cash Taxes otherwise payable) as a result of such Loss by the Indemnified Party by reason of in the taxable year such Loss and (ii) increased to take account is incurred or the immediately succeeding taxable year. In computing the amount of any net such Tax cost actually incurred by 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 of any indemnity payment hereunder or accrual the incurrence or payment of indemnity payments hereunder (i.e.any indemnified amount. In computing the amount of any such Tax benefit actually realized, grossed-up for such increase). For purposes of calculating Losses hereunder with respect to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements Tax benefit shall be ignorednet of any Tax detriment arising from the receipt of any indemnification payment. Upon making any indemnification payment under this Article IX, the Indemnifying Party will, to the extent of such indemnification payment, be subrogated to all rights of Indemnified Party against any third person in respect of the Loss to which the indemnification payment related. Without limiting the generality or effect of any other provision hereof, each such Indemnified Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation rights.

Calculation of Indemnity Payments. The If any Indemnitee --------------------------------- subsequently realizes a tax benefit by reason of any payment of an indemnified Tax pursuant to this Article VII or by reason of payment of an amount, which amount was reimbursed to such Indemnitee by Lessee on an After-Tax Basis pursuant to a provision specifically requiring the payment of such amount on an After-Tax Basis (other than pursuant to any provision of Article VI or the Tax Indemnification Agreement, if any), which benefit had not previously been taken into account in computing such payment, such Indemnitee shall pay Lessee when such tax benefit is actually utilized (but not before Lessee shall have made all payments and indemnification theretofore due to such Indemnitee pursuant to the Operative Documents) an amount equal to the lesser of (a) the sum of (i) an amount equal to such tax benefit, plus (ii) an amount equal to any other tax benefit realized and actually utilized by such Indemnitee as the result of any payment made by such Indemnitee pursuant to this sentence, and (b) the amount of such payment and any Loss for which indemnification is provided under this Article X shall be net of any insurance amounts and amounts recovered from other third parties when and payment by Lessee to the extent actually received by the Parent Indemnified Parties such Indemnitee with respect to such Loss provided that no Parent Indemnified Party shall have any obligation to seek or pursue any insurance recoveries (other than under those policies covering the Company and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit of any such insurance Tax or other recovery at any time in its sole discretion). Howeveramount that gave rise to such tax benefit, in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from reduced by other third parties, amounts previously paid by such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated Indemnitee to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, Lessee with respect to the tax benefits resulting from such Tax or other amount pursuant to this Article VII; provided, however, that, notwithstanding the foregoing portions of this -------- ------- sentence, such Indemnitee shall not be obligated to make any matter giving rise payment to a claim Lessee pursuant to this sentence if and for indemnification hereunderso long as an Event of Default shall have occurred and be continuing, but shall promptly make such payment once all Events of Default shall no longer be continuing. Any indemnity payment under this Article X Taxes that are imposed on any Indemnitee as a result of a disallowance or reduction of any tax benefit taken into account in the prior sentence shall be treated as an adjustment a Tax for which Lessee is obligated to indemnify such Indemnitee pursuant to the Purchase Price for Tax purposes provisions of Article VII hereof without regard to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be Section 7.02 (other than subsections (c), (d), (e), (f), (g), (h) and (i) reduced by the amount of the net Tax benefit actually realized by the Indemnified Party by reason of such Loss and (ii) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of indemnity payments hereunder (i.e., grossed-up for such increasethereof). For purposes of calculating Losses hereunder with respect to determining whether the Losses exceed the Deductible for purposes of Section 10.6(a), any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignored.