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Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted to take account of the actual amount of any Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Sigma Aldrich Corp)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Article VIII Agreement or Article IX clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates indemnified party under insurance policies after adjustment for future increases the True Insurance Policies (as such term is defined in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person ATCA) with respect to such Loss; provided, and however, that the indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit or Tax detriment Benefit (as defined in the ATCA) realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment deductibility of any such Loss. In computing the amount of any such Tax benefit cost or Tax detrimentBenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to indemnification upon actual recognition clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such loss deduction net Tax cost (including gross-up) or credit; furthernet Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have “actually realized” a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes, that such indemnified party would be required to pay but for the Indemnified Party cannot utilize receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any Tax benefit increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870 AD or successor form) with respect to a Loss in the Tax period of indemnified party’s liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement adjustment shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitif necessary. (b) Notwithstanding anything No indemnified party shall be entitled to indemnification pursuant to Section 13.01(a) with respect to any Loss that has been taken account of in any adjustment pursuant to Section 1.05 of the Maleic Agreement. If the amount of any Loss, at any time subsequent to the contrary contained hereinmaking of any payment for indemnification pursuant to Section 13.01(a) or 13.02(a), no is reduced by recovery, settlement or otherwise under or pursuant to any claim, recovery, settlement or payment by or against any other person that is not an affiliate of the indemnified party, the amount of such reduction, less any costs, expenses, premiums or other offsets incurred in connection therewith, shall promptly be repaid by the indemnified party to the indemnifying party. Upon making any payment for indemnification shall pursuant to Section 13.01(a) or 13.02(a), the indemnifying party shall, to the extent of such payment, be provided for subrogated to all rights of the indemnified party (other than any rights of such indemnified party under this Article VIII or Article IX any insurance policies) against any third party that is not an affiliate of the indemnified party in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as Loss to which breaches there will be no limit on such payment relates. Each such indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the amount of indirect or consequential damages that may be recovered by Buyer)above described subrogation rights.

Appears in 2 contracts

Samples: Master Agreement (Marathon Oil Corp), Master Agreement (Marathon Oil Corp)

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person otherwise with respect to such LossLosses, and shall (ii) be adjusted to take account of the actual amount net of any indemnification paid by any third party and (iii) be reduced by any Tax benefit or Tax detriment benefits actually realized by the Indemnified Party to the extent the claim for which indemnification is sought gives rise to a deductible loss, credit or expense in the taxable period when incurred or in the three (3) subsequent annual taxable periods, as calculated on a with and without basis. The Purchaser Indemnified Parties shall use reasonable best efforts to seek full recovery under all insurance policies covering any Affiliate Loss and from other parties. In the event that an insurance or group of Affiliates of such other recovery is made by any Purchaser Indemnified Party arising from the incurrence or payment of with respect to any Loss for which any such Loss. In computing the amount of any Person has been indemnified hereunder, then such Tax benefit or Tax detriment, the Purchaser Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, promptly pay to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss Seller (or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit one or more accounts designated by the Indemnified Party. Such payment for reimbursement shall be made Seller) an amount equal to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitrecovery. (b) Notwithstanding anything to the contrary contained hereinelsewhere in this Agreement, no indemnification shall Party shall, in any event, be provided liable to any other Person for under this Article VIII consequential damages that were not a reasonably foreseeable consequence of the relevant breach or Article IX in respect of for any special or punitive damages (other than except in the case of a Party’s obligation to indemnify an Indemnified Party for amounts actually paid to a third party where consequential, special or punitive damages sought, are awarded pursuant to a third party claim (or otherwise imposed in any Third-Party Claim)settlement thereof) that is subject to indemnification hereunder. (c) Notwithstanding anything to the contrary hereinelsewhere in this Agreement, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable the Purchaser Indemnified Parties are not entitled to indemnification pursuant to this Article VIII to the extent that any matter, amount, item or other fact for which they are seeking indemnification hereunder was included as a Current Liability in determining the Closing Date Net Working Capital Amount or is or relates to an Excluded Item, and (ii) proximately resulted from the events Purchaser Indemnified Parties’ rights to indemnification pursuant to this Article VIII on account of any Losses will be reduced by the amount of any reserve reflected on the audited consolidated balance sheet of the Company Entities and circumstances their Subsidiaries as of December 31, 2015 included in the Financial Statements which were established for the general category of items or matters similar in nature to the specific items or matters giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)such Loss.

Appears in 2 contracts

Samples: Stock Purchase Agreement, Stock Purchase Agreement (CEB Inc.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article ARTICLE VIII or Article IX by the Indemnifying Party shall be net of (i) any amounts actually recovered by the Indemnified Party under applicable insurance policies (net of costs of any recovery (including any deductible amounts, attorney’s fees and any increased insurance premiums)), excluding, however, the R&W Insurance Policy (which shall be governed by Section 8.5 hereof) and (ii) any net Tax benefit (A) arising in connection with the incurrence or payment of the applicable Loss giving rise to the claim for indemnification (including any Tax benefit arising as a result of an adjustment that has the effect of either moving (1) any Taxes or an item of income or gain, in each case, from a Post-Closing Period to a Pre-Closing Period or (2) a loss, deduction or credit from a Pre-Closing Period to a Post-Closing Period) and (B) that is actually utilized by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts to reduce the amount of Taxes payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person of its Affiliates (as determined on a with respect and without basis and as the last item taken into account) in (1) the Tax period in which the applicable indemnification payment was made to such Lossthe Indemnified Party, and shall be adjusted (2) any taxable period beginning before the taxable period that includes the date on which the applicable indemnification payment was made to take account of the actual amount of any Tax benefit or Tax detriment realized by the Indemnified Party or (3) the first three taxable periods beginning after the Tax period that includes the date on which the applicable indemnification payment was made to the Indemnified Party. If the Indemnified Party actually recovers any Affiliate amounts under applicable insurance policies or group of Affiliates of recognizes a net Tax benefit, in each case, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment in the amount of such received (or net Tax benefit upon actual utilization of such Tax benefit recognized) by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying , net of any expenses reasonably incurred by such Indemnified Party within ten Business Days of the utilization of in collecting such Tax benefitamount (including any deductible amounts and attorneys’ fees). (b) Notwithstanding anything to the contrary contained hereinUNDER NO CIRCUMSTANCES SHALL AN INDEMNIFYING PARTY HAVE ANY LIABILITY TO ANY INDEMNIFIED PARTIES UNDER THIS AGREEMENT FOR, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages AND THE INDEMNIFIED PARTIES SHALL NOT HAVE THE RIGHT TO CLAIM OR RECOVER FROM THE INDEMNIFYING PARTY, ANY EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER, EXCEPT (other than punitive damages soughtI) TO THE EXTENT RECOVERED FROM THE INDEMNIFIED PARTY BY A THIRD PARTY OR (II) ARISING FROM FRAUD, awarded or otherwise imposed in any Third-Party Claim)WILLFUL MISCONDUCT OR INTENTIONAL MISREPRESENTATION OF THE INDEMNIFYING PARTY. (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 2 contracts

Samples: Membership Interest Purchase Agreement (Quipt Home Medical Corp.), Membership Interest Purchase Agreement (Great Elm Group, Inc.)

Calculation of Losses. (ai) The amount of any Loss for which indemnification is provided under this Article VIII Section 9.b(i) or Article IX Section 9.c(i) shall be net adjusted to take account of any amounts recovered net Tax cost or Tax benefit actually realized by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts the form of an increase or reduction in cash Taxes otherwise payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person a cash Tax refund with respect to such Loss, and shall be adjusted to take account of the actual amount of taxable year in which the applicable indemnification is received or any Tax benefit or Tax detriment realized prior taxable year by the Indemnified Party Indemnitee (or any Affiliate or group of Affiliates of such Indemnified Party its Affiliates) arising from the incurrence or payment of any such Loss. In computing the amount of If any such Tax benefit cost or Tax detrimentbenefit is incurred or received, as applicable, by an Indemnified Party after an indemnity payment with respect to a Loss has been made, the Indemnified Party shall be deemed pay to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization (up to the amount of the Indemnifying Party’s indemnity payment) and the Indemnifying Party shall pay to the Indemnified Party the amount of such Tax benefit cost. (ii) The amount of Losses recoverable by an Indemnified Party under Section 9.b(i) or Section 9.c(i) shall be reduced by the amount of any payment received by such Indemnified Party (or an Affiliate thereof) from an insurance carrier or third-party indemnitor with respect to the Losses to which such claim for indemnification relates, net of the cost of collection and any increase in insurance cost directly resulting from such recovery. If an Indemnified Party (or an Affiliate thereof) receives any insurance payment or third-party indemnity payment with respect to any claim for Losses for which it previously received indemnification from the Indemnifying Party. Such payment for reimbursement , it shall be made pay to the Indemnifying Party within ten Business Days thirty (30) days of receiving such insurance payment or third-party indemnity payment the utilization amount of such Tax benefitinsurance payment or third-party indemnity payment. (biii) Notwithstanding anything Any indemnity payment under Section 9.b(i) or Section 9.c(i) shall be treated as an adjustment to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything Purchase Price to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment maximum extent allowable under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)applicable Law.

Appears in 2 contracts

Samples: Purchase Agreement (Adma Biologics, Inc.), Master Purchase and Sale Agreement (Adma Biologics, Inc.)

Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article XI shall be net of any amounts actually recovered or recoverable by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery). (b) If the amount of any Loss for which indemnification is provided under this Article VIII or Article IX XI gives rise to a currently realizable Tax benefit (as defined below) to the indemnified party making the Indemnification Claim, then the Indemnification Claim shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. To the extent such Indemnification Claim does not give rise to a currently realizable Tax benefit, if the amount with respect to which any Indemnification Claim is made gives rise to a subsequently realized Tax benefit to the indemnified party that made the Indemnification Claim, such indemnified party shall refund to the indemnifying party the amount of such Tax benefit (with and including any gross-up payment made pursuant to this Section 11.6(b) with respect to such Tax benefit) when, as and if realized (it being understood that such indemnified party shall use its commercially reasonable efforts to realize such Tax benefit). For purposes of this Section 11.6(b), a “Tax benefit” means an amount by which the Tax liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment hereunder or credit; furtherthe incurrence or payment of any indemnified Loss. For purposes of this Section 11.6(b), a Tax benefit is “currently realizable” to the extent that the Indemnified Party cannot utilize any such Tax benefit can be realized in the current taxable period or year or in any tax return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the Indemnification Claim. The amount of any increase, reduction or payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870-AD or successor form) with respect to a Loss in the Tax period of indemnified party’s liability for Taxes, and payments between the parties to this Agreement to reflect such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement adjustment shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for if necessary. Any indemnity payment under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything XI shall be treated as an adjustment to the contrary hereinvalue of the asset upon which the underlying Indemnification Claim was based, unless a final determination (which shall include the parties agree that indemnifiable Losses (aexecution of a Form 870- AD or successor form) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect the indemnified party or consequential damages in excess any of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect its Affiliates causes any such payment not to a breach be treated as an adjustment to the value of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)asset for United States federal income tax purposes.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement

Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article X shall be net of any amounts actually recovered or recoverable by the indemnified party under insurance policies (provided that any increased insurance premium resulting from payment of such amounts shall be deemed to be Losses) or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery). (b) If the amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by X gives rise to a currently realizable Tax Benefit (as defined below) to the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by making the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Lossclaim, and then the indemnity claim shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit or Tax detriment Benefit realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. To the extent such indemnity claim does not give rise to a currently realizable Tax Benefit, if the amount with respect to which any indemnity claim is made gives rise to a subsequently realized Tax Benefit to the indemnified party that made the claim, such indemnified party shall refund to the indemnifying party the amount of such Tax Benefit (with and including any gross-up payment made pursuant to this Section 10.9 with respect to such Tax Benefit) when, as and if realized (it being understood that such indemnified party shall use its reasonable efforts to realize such Tax Benefit). For purposes of this Section 10.9, a "Tax Benefit" means an amount by which the Tax liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax benefit cost or Tax detrimentBenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment hereunder or credit; furtherthe incurrence or payment of any indemnified Loss. For purposes of this Section 10.9, a Tax Benefit is "currently realizable" to the extent that such Tax Benefit can be realized in the Indemnified Party cannot utilize current taxable period or year or in any Tax benefit tax return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the indemnity claim. The amount of any increase, reduction or payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870-AD or successor form) with respect to a Loss in the Tax period of indemnified party's liability for Taxes, and payments between the parties to this Agreement to reflect such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement adjustment shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for if necessary. Any indemnity payment under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything X shall be treated as an adjustment to the contrary hereinvalue of the asset upon which the underlying claim was based, unless a final determination (which shall include the parties agree that indemnifiable Losses (aexecution of a Form 870-AD or successor form) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect the indemnified party or consequential damages in excess any of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect its Affiliates causes any such payment not to a breach be treated as an adjustment to the value of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)asset for United States federal income tax purposes.

Appears in 1 contract

Samples: Asset Purchase Agreement (C&d Technologies Inc)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX Section 4.1 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on or from any other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect person alleged to such Lossbe responsible therefor, and shall be adjusted to take account of the actual amount of any Tax (ii) net tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1; provided that (x) no such reduction for such tax benefit shall occur prior to the time at which such tax benefit is actually realized and (y) to the extent that such net tax benefit is actually realized after the date on which payment in respect of such Loss is made or deemed made under Section 4.1 (but during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1), the Indemnified Party shall reimburse the party or parties obligated to indemnify such Indemnified Party in respect of such Loss promptly following the time at which such tax benefit is actually realized. The Indemnified Party shall be deemed to have “actually realized” a net tax benefit to the extent that, and at such time as, the amount of taxes paid by the Indemnified Party or any of its Affiliates is reduced below the amount of taxes that such persons would have been required to pay but for the tax benefit. In computing the amount of any such Tax benefit or Tax detrimenttax benefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any items arising from the Loss giving rise incurrence or payment of any Losses for which indemnification is provided under Section 4.1. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other person alleged to be responsible for any Losses, subsequent to an indemnification upon actual recognition payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such loss deduction or credit; further, Indemnified Party in collecting such amount. (b) Each Indemnified Party must mitigate to the extent that required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party cannot utilize under any Tax indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit with to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) business days after the benefit is received. (c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 4.1 and the Indemnified Party could have recovered all or a Loss in the Tax period part of such Loss or in Losses from a third party (a “Potential Contributor”) based on the Tax period any indemnification payment for such Loss is receivedunderlying claim asserted against the Indemnifying Party, the Indemnified Party shall reimburse assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party for to recover from the Potential Contributor the amount of such Tax benefit upon actual utilization payment. (d) The Assignor (including any officer or director of such Tax benefit Pequod) shall not have any right of contribution, indemnification or right of advancement from Pequod or the Assignee with respect to any Loss claimed by the an Indemnified Party. Such payment The Assignor shall not make any claim for reimbursement shall be made monetary damages or indemnification against either Pequod or the Assignee or any of their respective Affiliates with respect to the Indemnifying any claim properly brought by an Assignee Indemnified Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded IV or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything relating to the contrary hereinthis Agreement, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from Promissory Note or the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Transactions.

Appears in 1 contract

Samples: Assignment Agreement (Fintech Holdings Inc.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX X by the Indemnifying Party shall be net of any amounts actually recovered by the Indemnified Party under applicable insurance policies in respect of such Loss, in each case net of costs and expenses incurred by such Indemnified Party or its Affiliates under insurance policies after adjustment for future in procuring such recovery and any retro-premium obligations, increases in premiums on or premium adjustments, deductibles incurred or other amounts payable by obligations associated therewith. If the Indemnified Party or reimbursement provided by actually receives any Governmental Entity or other Person amounts under applicable insurance policies with respect to such Loss, and shall be adjusted subsequent to take account of the actual amount of any Tax benefit or Tax detriment realized an indemnification payment by the Indemnified Party or any Affiliate or group of Affiliates of Indemnifying Party, then such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall promptly reimburse the Indemnifying Party for any indemnification payment actually made to such Indemnified Party by such Indemnifying Party in connection with providing such indemnification payment up to the amount of such Tax benefit upon actual utilization of such Tax benefit actually received by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying , in each case, net of costs and expenses incurred by such Indemnified Party within ten Business Days of the utilization of or its Affiliates in procuring such Tax benefitrecovery and any retro-premium obligations associated therewith. (b) The Indemnifying Party shall not be liable under Article IX or this Article X for any Losses relating to any matter to the extent that there was included in the Closing Date Balance Sheet a specific liability or reserve relating to such matter or such item was included as a “Current Liability” in the calculation of Closing Date Net Working Capital (or such amount was included in the calculation of Closing Company Debt or Company Transaction Expenses). (c) From and after the Closing, none of the Securities Holders Representative or any Securities Holder shall seek, or have any right to seek, indemnification or contribution from the Surviving Corporation or any of its Subsidiaries with respect to any action, suit, proceeding, complaint, claim or demand brought by any Parent Indemnified Party (whether such action, suit, proceeding, complaint, claim or demand is pursuant to this Agreement for any amount for which such Securities Holders Representative or Securities Holder is otherwise responsible pursuant to this Agreement, applicable law or otherwise). (d) The Indemnified Parties shall use Reasonable Efforts to take any actions required by Law to mitigate their Losses which are indemnifiable hereunder. (e) Notwithstanding anything to the contrary contained hereinin this Agreement, no indemnification shall be provided solely for under this Article VIII or Article IX in respect purposes of determining the amount of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything Losses that are subject to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer hereunder with respect to indirect or consequential damages in excess of U.S.$25,000,000 any claim (other than in respect of indirect and consequential damage arising with respect to but not for purposes determining whether there has been a breach of any provision of this Agreement in connection with such claim), each representation, warranty and covenant in this Agreement shall be read without regard and without giving effect to the representations and warranties set forth in Sections 3.1term(s) “material” or “Material Adverse Effect” or similar qualifiers as if such words were deleted from such representation, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect warranty or consequential damages that may be recovered by Buyer)covenant.

Appears in 1 contract

Samples: Merger Agreement (Biomet Inc)

Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article XI shall be net of any amounts actually recovered or recoverable by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery). (b) If the amount of any Loss for which indemnification is provided under this Article VIII or Article IX XI gives rise to a realizable Tax benefit (as defined below) to the indemnified party making the Indemnification Claim, then the Indemnification Claim shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. To the extent such Indemnification Claim does not give rise to a realizable Tax benefit, if the amount with respect to which any Indemnification Claim is made gives rise to a subsequently realized Tax benefit to the indemnified party that made the Indemnification Claim, such indemnified party shall refund to the indemnifying party the amount of such Tax benefit (with and including any gross-up payment made pursuant to this Section 11.6 with respect to such Tax benefit) when, as and if realized (it being understood that such indemnified party shall use its reasonable efforts to realize such Tax benefit). For purposes of this Section 11.6, a “Tax benefit” means an amount by which the Tax liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect receipt of any special indemnity payment hereunder or punitive damages (other than punitive damages sought, awarded the incurrence or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result payment of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)indemnified Loss.

Appears in 1 contract

Samples: Note and Equity Purchase Agreement

Calculation of Losses. (a) The amount of any Loss Damages for which indemnification is provided under this Article VIII Section 4.7 or Article IX Section 4.8(c) shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable with respect to such Damages and shall be (i) increased to take account of any net Tax cost incurred by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to arising from the receipt of indemnity payments hereunder (grossed up for such Loss, increase) and shall be adjusted (ii) reduced to take account of the actual amount of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossDamages, in each case calculated at the time of payment, using the characterization described below and assuming that all income and deductions bear (or relieve) Tax at an effective corporate rate based on the maximum marginal Federal rate and a state rate of 7.0%, taking into account the deductibility (if then allowed) of state tax from Federal taxable income. In Any indemnity payment under this Section 4.7 or Section 4.8(c) shall be treated as an adjustment to the Adjusted Consideration for Tax purposes, or as settlement of an obligation intended to be retained by the Company although paid by Buyer, unless a final determination (which shall include the execution of a Form 870-AD or successor form) with respect to the Indemnified Party or any of its affiliates causes any such payment not to be treated as an adjustment to the Adjusted Consideration for United States Federal income tax purposes. If any Tax Agency asserts in writing during the examination of any Return of Buyer or the Company that any indemnity payment should be characterized other than as provided in this Section 4.7(g), the Party that receives the proposed recharacterization (the "Affected Party") shall promptly notify the other Party (the "Consulted Party") in writing, with a copy of the proposed recharacterization. The Affected Party may control any proceedings involving the proposed recharacterization but (1) shall resist, in good faith and by appropriate proceedings, the proposed recharacterization, (2) shall provide the Consulted Party with copies of the portions of all communications from the relevant Tax Agency and all proposed filings and submissions regarding the proposed recharacterization, (3) shall consult with the Consulted Party regarding the conduct of the contest, and (4) shall not settle or concede the proposed recharacterization without the consent of the Consulted Party. If the Affected Party materially breaches its obligations under the preceding sentence, the Consulted Party may, in computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, indemnity payable to the extent that Affected Party, continue to treat its indemnity payments as an adjustment to the Indemnified Party canAdjusted Consideration and not utilize as provided in any Tax benefit final determination made with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Affected Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Purchase Agreement (Watkins Johnson Co)

Calculation of Losses. (a) The amount Any indemnification payments owed by any Party under Article VI or Article VIII in respect of any Loss for which indemnification is provided under this Article VIII or Article IX Losses shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect limited to such Loss, and shall be adjusted to take account of the actual amount of any Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any liability or damage that remains after deducting therefrom (i) any insurance proceeds actually received (net of any deductibles, Taxes, out-of-pocket collection expenses, external legal expenses and premium increases) by the Person seeking indemnification under this Agreement in respect of such Losses, and (ii) any refund, credit or reduction in otherwise required Tax payments or other Tax benefit actually received or recognized by the Person seeking indemnification under this agreement as a result of such Loss net of any applicable Tax detriment, . To the extent proceeds under insurance policies or any Tax payments or other Tax benefit are actually received by a Buyer Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of any Losses after indemnification payments have been made to such Loss or in the Tax period any indemnification payment Buyer Indemnified Party for such Loss is receivedLosses, the such Buyer Indemnified Party shall will promptly proportionately reimburse the Indemnifying Party for Parties having made such payments up to the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitindemnification payments. (b) Notwithstanding anything in this Agreement to the contrary contained hereincontrary, no indemnification the amount of Losses related thereto shall be provided for under this Article VIII determined without regard to any qualifications therein referencing terms “material”, “materially”, “Material Adverse Change” or Article IX in respect words of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim)similar import set forth therein. (c) Notwithstanding anything to the contrary hereincontained in this Agreement, the parties agree that indemnifiable Losses (arights of any Buyer Indemnified Party to indemnification pursuant to Sections 8.2(a)(i) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from of this Agreement shall not be impacted or limited by any knowledge that any Buyer Indemnified Party may have acquired, or could have acquired, whether before or after the events and circumstances giving rise Closing Date, nor by any investigation or diligence by or at the direction of any such Buyer Indemnified Party. (d) Notwithstanding anything to the Lossescontrary herein, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL any Party be obligated entitled to indemnify obtain indemnification more than once in respect of the same Loss even though such Loss may have resulted from the breach of more than one of the representations, warranties, agreements and covenants in this Agreement, including to the extent a purported Loss is accounted for in the Final Closing Adjustment or listed as a liability in the Financial Statements. (e) A Buyer with respect Indemnified Party shall act in good faith and a commercially reasonable manner to indirect mitigate any Losses they may pay, incur, suffer or consequential damages in excess sustain for which indemnification is available hereunder (which, for the avoidance of U.S.$25,000,000 doubt, shall not require any Buyer Indemnified Party to seek recovery from any third party (other than in respect of indirect and consequential damage arising with respect pursuant to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyerinsurance policies)).

Appears in 1 contract

Samples: Purchase Agreement (Leaf Group Ltd.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX Section 4.1 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on or from any other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect person alleged to such Lossbe responsible therefor, and shall be adjusted to take account of the actual amount of any Tax (ii) net tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1; provided that (x) no such reduction for such tax benefit shall occur prior to the time at which such tax benefit is actually realized and (y) to the extent that such net tax benefit is actually realized after the date on which payment in respect of such Loss is made or deemed made under Section 4.1 (but during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1), the Indemnified Party shall reimburse the party or parties obligated to indemnify such Indemnified Party in respect of such Loss promptly following the time at which such tax benefit is actually realized. The Indemnified Party shall be deemed to have “actually realized” a net tax benefit to the extent that, and at such time as, the amount of taxes paid by the Indemnified Party or any of its Affiliates is reduced below the amount of taxes that such persons would have been required to pay but for the tax benefit. In computing the amount of any such Tax benefit or Tax detrimenttax benefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any items arising from the Loss giving rise incurrence or payment of any Losses for which indemnification is provided under Section 4.1. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other person alleged to be responsible for any Losses, subsequent to an indemnification upon actual recognition payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such loss deduction or credit; further, Indemnified Party in collecting such amount. (b) Each Indemnified Party must mitigate to the extent that required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party cannot utilize under any Tax indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit with to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) business days after the benefit is received. (c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 4.1 and the Indemnified Party could have recovered all or a Loss in the Tax period part of such Loss or in Losses from a third party (a “Potential Contributor”) based on the Tax period any indemnification payment for such Loss is receivedunderlying claim asserted against the Indemnifying Party, the Indemnified Party shall reimburse assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party for to recover from the Potential Contributor the amount of such Tax benefit upon actual utilization payment. (d) The Assignor (including any officer or director of such Tax benefit Grenadier) shall not have any right of contribution, indemnification or right of advancement from Grenadier or the Assignee with respect to any Loss claimed by the an Indemnified Party. Such payment The Assignor shall not make any claim for reimbursement shall be made monetary damages or indemnification against either Grenadier or the Assignee or any of their respective Affiliates with respect to the Indemnifying any claim properly brought by an Assignee Indemnified Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded IV or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything relating to the contrary hereinthis Agreement, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from Promissory Note or the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Transactions.

Appears in 1 contract

Samples: Assignment Agreement (Fintech Holdings Inc.)

Calculation of Losses. (a) The amount of All Losses that any Loss for which indemnified party is entitled to indemnification is provided under this Article VIII or Article IX XI shall be calculated after giving effect to: (i) any proceeds actually received from insurance policies covering the damage, loss, liability or expense that is the subject to the claim for indemnity, (ii) any proceeds actually received from third parties, including through indemnification, counterclaim, reimbursement arrangement, contract or otherwise in compensation for the subject matter of an indemnification claim by such indemnified party, and (iii) any net of any amounts recovered Tax cost incurred by the Indemnified Party or its Affiliates under insurance policies after adjustment indemnified party arising from the receipt of indemnity payments hereunder (grossed up for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by such increase) and (iv) any Governmental Entity or other Person with respect to such Loss, and shall be adjusted to take account of the actual amount of any net Tax benefit actually realized in cash, credit or Tax detriment realized by a reduction of Taxes otherwise payable in the Indemnified Party year in which such Loss was incurred (or any Affiliate or group of Affiliates of such Indemnified Party in a prior year) arising from the incurrence or payment of any such LossLoss (such arrangements referenced in clauses (i), (ii), (iii) and (iv), collectively, “Alternative Arrangements”) net of any reasonable out-of-pocket expenses incurred by such indemnified party in collecting such amount. In computing the amount of any such Tax benefit or Tax detrimentreferred to in the foregoing sentence, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of any indemnity payment hereunder or the incurrence or payment of any Losses. Without limiting clause (iii) or (iv), the taking of a Tax deduction in connection with any such loss deduction damage, loss, liability or credit; further, to the extent expense that the Indemnified Party cannot utilize any Tax benefit with respect is subject to a Loss in the Tax period of such Loss or in the Tax period any claim for indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to at the Indemnifying Party within ten Business Days discretion of the utilization of such Tax benefitindemnified party. (b) Notwithstanding anything Following the Closing, Sellers, Purchaser, the Bank and its Subsidiaries shall utilize their commercially reasonable best efforts, consistent with normal practices and policies and good commercial practice, to mitigate any amounts payable under Section 11.2, including pursuing all reasonable remedies to collect any proceeds pursuant to Alternative Arrangements covering the Loss that is the subject to the contrary contained herein, no indemnification claim for indemnity (provided that the indemnified party shall not be provided for under this Article VIII or Article IX required to institute a lawsuit in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).Alternative

Appears in 1 contract

Samples: Stock Purchase Agreement (Capital One Financial Corp)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX by the Indemnifying Party shall be net of any amounts recovered by Loss Tax Benefit inuring to the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by account of such Loss. If the Indemnified Party receives any amounts under applicable insurance policies, or reimbursement provided by from any Governmental Entity or other Person alleged to be responsible for any Losses, then (i) if no indemnification payments by or on behalf of an Indemnifying Party have been made with respect to such LossLosses, the amount of such Losses shall be reduced by such amounts received under insurance policies or from another Person, net of any costs and expenses (including reasonable fees and expenses of attorneys), deductibles, retentions, or increase in premiums incurred in connection with or as a result of collecting such proceeds or other recoveries, and shall be adjusted (ii) if an indemnification payment by or on behalf of an Indemnifying Party has been made with respect to take account such Losses, and such amounts received under such insurance policies or from another Person together with such indemnification payment are collectively in excess of the actual amount of such indemnifiable Losses, then such Indemnified Party shall promptly reimburse the Indemnifying Party who made such payment the lesser of (A) the amount of such excess, net of any costs and expenses (including reasonable fees and expenses of attorneys), deductibles, retentions, or increase in premiums incurred in connection with or as a result of collecting such proceeds or other recoveries, and (B) the amount paid by such Indemnitor to the Indemnitee with respect to such Losses. The Indemnified Party shall use reasonable efforts to collect any amounts available under such insurance coverage. If the Indemnified Party receives a Loss Tax benefit Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the Person or Persons that made such indemnification payment the amount of such Loss Tax detriment Benefit at such time or times as and to the extent that such Loss Tax Benefit is actually received or realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Loss. In computing and has not been previously applied to reduce the amount of the related Loss. No Indemnifying Party shall have any such Tax benefit or Tax detriment, the right to subrogate to any claim any Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize may have against any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitthird party. (b) Notwithstanding anything The Indemnified Parties shall take, and shall cause their respective Affiliates to take, all reasonable steps required by applicable Law to mitigate and otherwise minimize their Losses to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect extent reasonably possible upon and after becoming aware of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything event which would reasonably be expected to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving give rise to the any Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Stock Purchase Agreement (Granite Construction Inc)

Calculation of Losses. (ai) The Subject to Section 18(d)(ii), the amount of any Loss Losses for which indemnification is provided under this Article VIII Section 18(a) or Article IX Section 18(b) shall be net (A) increased to take account of any amounts recovered net tax cost incurred by the Indemnified Party or its Affiliates under insurance policies after adjustment arising from the receipt of indemnity payments hereunder (grossed up for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Lossincrease), and shall be adjusted (B) reduced to take account of the actual amount of any Tax net tax benefit or Tax detriment immediately realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party in cash arising from the incurrence or payment of any such LossLosses. In computing the amount of any such Tax benefit tax cost or Tax detrimenttax benefit, the Indemnified Party shall be deemed to recognize and receive all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any indemnity payment under Section 18(a) or Section 19(b) or the incurrence or payment of any indemnified Losses. (ii) The amount of Losses recoverable by an Indemnified Party under Section 18(a) or Section 18(b) shall be reduced by the amount of any payment received from an insurance carrier or other third-party indemnitor by such Indemnified Party (or an Affiliate thereof) with respect to the Losses to which such claim for indemnification relates, net of the cost of collection and any increase in insurance cost resulting from such recovery. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Losses for which it has already received an indemnification or other third-party indemnity payment from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; furtherIndemnifying Party, it shall pay to the extent that Indemnifying Party (as defined below), within thirty (30) days of receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party cannot utilize any Tax benefit under Section 18(a) or Section 18(b), as applicable, with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for claim plus the amount of the insurance payments directly related to such Tax benefit upon actual utilization of such Tax benefit claim received by the Indemnified Party. Such payment for reimbursement shall be made to , over (B) the Indemnifying Party within ten Business Days amount of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect such claim which the Indemnified Party has become entitled to receive under Section 18(a) or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35Section 18(b), as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)applicable.

Appears in 1 contract

Samples: Manufacturing Services Agreement (Nabi Biopharmaceuticals)

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment or otherwise with respect to such Losses. (b) The amount of any Losses for future increases in premiums on other amounts payable which indemnification is provided under this Article IX shall be increased to take account of any net Tax cost incurred by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, resulting from the receipt of indemnity payments hereunder and shall be adjusted reduced to take account of the actual amount of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising resulting from the incurrence or payment of any such LossLoss or that would be realized if the proceeds of such indemnity payment were used to ameliorate the circumstance that gave rise to the Indemnification Claim (in each case, grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). In computing To the extent payment of such Claim does not give rise to a Tax cost currently payable by the Indemnified Party, if payment of the Claim gives rise to a Tax cost subsequently payable by the Indemnified Party, the Indemnifying Party shall pay the Indemnified Party the amount of any such Tax benefit or Tax detrimentcost when, as, and if payable by the Indemnified Party shall be deemed to recognize (grossed-up and receive items -down as appropriate in respect of loss deduction or credit changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). To the Loss giving extent such Claim does not give rise to indemnification upon actual recognition of such loss deduction or credit; furthera currently realizable Tax benefit, if the amount with respect to the extent that which any Claim is made gives rise to a subsequently realized Tax benefit to the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in that made the Tax period of Claim, such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse refund to the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. when, as and if realized (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). An Indemnified Party shall use its reasonable efforts to maximize and accelerate Tax benefits and to minimize and defer Tax costs whenever legally permissible. For purposes of this Section 9.7, “Tax cost” means the amount by which the Tax liability of the party (or group of entities including the party) is increased (including by increase in gross income, reduction in deductions by virtue of decreased tax basis or otherwise, reduction of refund or credit to which the party would otherwise be entitled, or otherwise) plus any special related interest, penalty, or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything addition to tax payable to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party relevant taxing authority as a result of any indemnification payment under this Agreement being treated such Tax cost; and “Tax benefit” means the amount by which the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach Tax liability of the representations party (or group of entities including the party) is or could be reduced (including by reduction of gross income, availability of deductions, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received or reduction of interest payable directly related to such Tax benefit. For purposes of this Section 9.7, “Tax benefits” and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, “Tax costs” shall be computed as if Buyer were a corporation subject to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).tax under

Appears in 1 contract

Samples: Asset Purchase Agreement (Six Flags Inc)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX X by the Indemnifying Party shall be (i) net of any amounts recovered by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases (net of any actual costs, expenses or premiums incurred in connection with securing or obtaining such proceeds and any increase in premiums on resulting therefrom, except to the extent that the adjustment itself would excuse, exclude or limit the coverage of all or part of such Loss) or from any other amounts payable Person alleged to be responsible therefor, (ii) increased to take account of any net Tax cost incurred by the Indemnified Party or reimbursement provided arising from the receipt of indemnity payments hereunder (grossed up for such increase) and decreased by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted to take account of the actual amount of any net Tax benefit or Tax detriment Benefit actually realized in cash by the Indemnified Party in the Tax year in which the Loss occurs or any Affiliate or group of Affiliates of such Indemnified Party the following Tax year arising from the incurrence or payment of any such Loss. In computing the amount Losses, and (iii) net of any amounts received by the Seller Indemnified Parties to the extent a claim is made under Applicable Securities Laws. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes actually paid in cash to the Indemnified Party. For the avoidance of doubt, Tax Benefits actually realized by an Indemnified Party do not include any increase in any net operating loss of such Indemnified Party or any increase in the Tax basis of any asset held by, or other Tax attribute of, such Party until such Tax benefit attribute actually results in a refund, credit for overpayment or reduction in Tax detriment, payments. If the Indemnified Party shall recovers any amounts under applicable insurance policies, or from any other Person alleged to be deemed responsible in respect of a Loss that is the subject of indemnification under this Article X subsequent to recognize and receive items of loss deduction or credit resulting from an indemnification payment by the Loss giving rise to indemnification upon actual recognition Indemnifying Party in respect of such loss deduction or credit; furtherLoss, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of then such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall promptly reimburse the Indemnifying Party for the excess (if any) of (i) the amount of such Tax benefit upon actual utilization of such Tax benefit paid by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of such Loss, plus the amount received from the third party (net of any special or punitive damages (other than punitive damages soughtdirect, awarded or otherwise imposed out-of-pocket expenses reasonably incurred by such Indemnified Party in any Third-Party Claim). (ccollecting such amount) Notwithstanding anything to the contrary hereinin respect of such Loss, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and less (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the full amount of indirect or consequential damages that may be recovered by Buyer)Loss.

Appears in 1 contract

Samples: Asset Purchase Agreement (Viggle Inc.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX Section 4.1 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on or from any other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect person alleged to such Lossbe responsible therefor, and shall be adjusted to take account of the actual amount of any Tax (ii) net tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1; provided that (x) no such reduction for such tax benefit shall occur prior to the time at which such tax benefit is actually realized and (y) to the extent that such net tax benefit is actually realized after the date on which payment in respect of such Loss is made or deemed made under Section 4.1 (but during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1), the Indemnified Party shall reimburse the party or parties obligated to indemnify such Indemnified Party in respect of such Loss promptly following the time at which such tax benefit is actually realized. The Indemnified Party shall be deemed to have “actually realized” a net tax benefit to the extent that, and at such time as, the amount of taxes paid by the Indemnified Party or any of its Affiliates is reduced below the amount of taxes that such persons would have been required to pay but for the tax benefit. In computing the amount of any such Tax benefit or Tax detrimenttax benefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any items arising from the Loss giving rise incurrence or payment of any Losses for which indemnification is provided under Section 4.1. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other person alleged to be responsible for any Losses, subsequent to an indemnification upon actual recognition payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such loss deduction or credit; further, Indemnified Party in collecting such amount. (b) Each Indemnified Party must mitigate to the extent that required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party cannot utilize under any Tax indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit with to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) business days after the benefit is received. (c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 4.1 and the Indemnified Party could have recovered all or a Loss in the Tax period part of such Loss or in Losses from a third party (a “Potential Contributor”) based on the Tax period any indemnification payment for such Loss is receivedunderlying claim asserted against the Indemnifying Party, the Indemnified Party shall reimburse assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party for to recover from the Potential Contributor the amount of such Tax benefit upon actual utilization payment. (d) The Assignor (including any officer or director of such Tax benefit Expanse) shall not have any right of contribution, indemnification or right of advancement from Expanse or the Assignee with respect to any Loss claimed by the an Indemnified Party. Such payment The Assignor shall not make any claim for reimbursement shall be made monetary damages or indemnification against either Expanse or the Assignee or any of their respective Affiliates with respect to the Indemnifying any claim properly brought by an Assignee Indemnified Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded IV or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything relating to the contrary hereinthis Agreement, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from Promissory Note or the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Transactions.

Appears in 1 contract

Samples: Assignment Agreement (Fintech Holdings Inc.)

Calculation of Losses. (a) The amount of any Loss for --------------------- which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of income, gain, loss deduction or credit resulting before recognizing any item arising from the Loss giving rise receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to indemnification upon actual recognition this paragraph and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax benefit only after the indemnified party has actually realized such cost or benefit. For purposes of such loss deduction this Agreement, an indemnified party shall be deemed to have "actually realized" a net Tax cost or credit; further, a net Tax benefit to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of that, and at such Loss or in the Tax period any indemnification payment for such Loss is receivedtime as, the Indemnified Party shall reimburse the Indemnifying Party for the amount of Taxes payable by such Tax benefit upon actual utilization indemnified party is increased above or reduced below, as the case may be, the amount of Taxes that such indemnified party would be required to pay but for the receipt of the indemnity payment or the incurrence or payment of such Tax benefit by the Indemnified PartyLoss. Such payment for reimbursement Any offset made against any Receivable based upon or arising from any liability of Seller that Purchaser has not expressly agreed to assume pursuant to Section 1.03(a) shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefita Loss for which indemnification is provided hereunder. (b) Notwithstanding anything Neither the provisions of Section 1.05 or 6.05 relating to adjustments of the contrary contained herein, no indemnification Purchase Price nor the provisions of Article VI relating to Seller's ability to Cure shall be provided for deemed to limit the rights of Purchaser under this Article VIII or or, subject to the provisions hereof, otherwise to seek recovery of Losses from Seller; provided, however, that in calculating the amount of any Loss for which indemnification is provided under this Article IX VIII there shall be taken into account amounts received by Purchaser under such other provisions in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim)such Loss. (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Potlatch Corp)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article VIII clause (i) of Section 7.02(a) or Article IX clause (i) of Section 7.03(a) shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates under insurance policies (after adjustment reduction for future increases any costs or expenses incurred in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person connection therewith, including, retrospective and prospective premium adjustments and experience-based premium adjustments) with respect to such Loss, . Each of the parties hereto acknowledges and agrees that neither the Seller nor the Purchaser shall have any obligation to maintain insurance except as required under the Supply Agreement or be obligated to have to resort to litigation against insurance carriers in order to pursue any insurance claims. (b) The amount of any Loss for which indemnification is provided under clause (i) of Section 7.02(a) or clause (i) of Section 7.03(a) shall be adjusted (a) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (b) reduced to take account of any net Tax benefit or Tax detriment immediately realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party in cash arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of income, gain, loss deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment under clause (i) of Section 7.02(a) or credit; further, clause (i) of Section 7.03(a) or the incurrence or payment of any indemnified Loss. Any indemnity payment under clause (i) of Section 7.02(a) or clause (i) of Section 7.03(a) shall be treated as an adjustment to the extent that Purchase Price for Tax purposes, unless a final determination (which shall include the Indemnified Party cannot utilize any Tax benefit execution of a Form 870-AD or successor form) with respect to a Loss in the indemnified party or any of its Affiliates causes any such payment not to be treated as an adjustment to such price for federal income Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitpurposes. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Asset Purchase Agreement (King Pharmaceuticals Inc)

Calculation of Losses. (a) Any indemnity payment made by an Indemnifying Party to an Indemnified Party pursuant to Section 5.2 shall be made net of (x) any amounts actually recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible for the matters underlying such indemnity payment less (y) any related costs and expenses, including the aggregate cost of pursuing any related insurance claims plus any related increases in insurance premiums or other chargebacks; provided, however, that notwithstanding anything in Section 5.4(d) to the contrary no party shall have any obligation to seek to recover any insurance proceeds or to initiate a lawsuit against any other Person in connection with making a claim under this Article V. If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for the matters underlying such indemnity payment subsequent to an indemnification payment by the Indemnifying Party, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by the Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party. (b) The amount of any indemnities payable by the Seller Parent or the Seller to the Buyer Indemnified Parties pursuant to Section 5.2(a) or Section 8.1(a) shall be reduced by any reserves in respect of the Loss for which indemnification giving rise to such indemnity payment recorded on either Year End Balance Sheet to the extent such reserves are specifically related to such Loss. (c) Each Indemnified Party shall use commercially reasonable efforts to mitigate any Loss that the Indemnified Party asserts or is provided reasonably likely to assert under this Article VIII or Article IX shall be net V upon a responsible officer of any amounts recovered by Indemnified Party becoming aware of any event that would reasonably be expected to give rise to such assertion. In the event that the Indemnified Party shall fail to make, or its Affiliates under insurance policies after adjustment cause to be made, any such commercially reasonable efforts to mitigate any such claim or liability, then notwithstanding anything to the contrary contained in this Agreement, the Indemnifying Party shall not be required to indemnify any Indemnified Party for future increases that portion of any Losses that would reasonably be expected, individually or in premiums on other amounts payable by the aggregate, to have been avoided if the Indemnified Party had made such efforts. (d) Each Indemnified Party shall use all commercially reasonable efforts to collect any and all amounts available under insurance coverage or reimbursement provided by from any Governmental Entity or other Person with respect alleged to such Lossbe responsible for any Losses payable under Section 5.2, and shall be adjusted to take account of such actions in such respect as the actual amount of any Tax benefit or Tax detriment realized by Indemnifying Party may reasonably request. If the Indemnified Party receives any payment from the Indemnifying Party in respect of any Losses pursuant to Section 5.2 and the Indemnified Party could have recovered all or any Affiliate or group of Affiliates part of such Indemnified Party arising Losses from a third party based on the incurrence or payment of any such Loss. In computing underlying claim asserted against the amount of any such Tax benefit or Tax detrimentIndemnifying Party, the Indemnified Party shall be deemed assign such of its rights to recognize and receive items of loss deduction or credit resulting from the Loss giving rise proceed against such third party as are necessary to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse permit the Indemnifying Party for to recover from such third party the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitpayment. (be) Notwithstanding anything Any indemnification payments made pursuant to this Agreement shall be treated for Tax purposes as an adjustment to the contrary contained hereinPurchase Price, no indemnification unless otherwise required by applicable Law. (f) No Indemnifying Party shall be provided for under this Article VIII liable pursuant to Section 5.2(a) or Article IX 5.2(b), as the case may be, in respect of any special Loss if such Loss would not have arisen but for, or punitive damages to the extent any Loss is increased as a result of, (i) the passing of, or a change in, a Law or a change to any written interpretation of the Law or administrative practice of any Governmental Authority occurring on or after the Closing or (ii) the change by statute or by any regulatory or other than punitive damages sought, awarded or otherwise imposed in similar official auditing standards body of any Third-Party Claim)accounting policy applicable to the applicable Indemnified Party. (cg) Notwithstanding anything No Indemnifying Party shall be liable to any Indemnified Party in respect of any Loss under this Article V to the contrary hereinextent such Loss is attributable to, or to the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long extent any Loss is increased as such damages a result of, any (i) were reasonably foreseeable and act, omission, transaction, or arrangement carried out at the written request of or with the written approval of such Indemnified Party, (ii) proximately resulted from the events and circumstances giving rise to the Lossesact, (b) exclude punitive damages (but include punitive damages sought, awarded transaction or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable arrangement carried out by an or on behalf of such Indemnified Party as a result if such act, transaction or arrangement was not commercially reasonable independent of such Indemnified Party’s rights to indemnification under this Agreement, or (iii) breach by such Indemnified Party of any indemnification payment of its obligations under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect any Ancillary Transaction Agreements or consequential damages that may be recovered by Buyer)any obligations entered into pursuant thereto.

Appears in 1 contract

Samples: Purchase Agreement (Ml Life Insurance Co of New York)

Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article X shall be net of any amounts actually recovered or --------- recoverable by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery). (b) If the amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by X gives rise to a currently realizable Tax benefit --------- (as defined below) to the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by making the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Lossclaim, and then the indemnity claim shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. To the extent such indemnity claim does not give rise to a currently realizable Tax benefit, if the amount with respect to which any indemnity claim is made gives rise to a subsequently realized Tax benefit to the indemnified party that made the claim, such indemnified party shall refund to the indemnifying party the amount of such Tax benefit (with and including any gross-up payment made pursuant to this Section 10.6 with respect to such Tax ------------ benefit) when, as and if realized (it being understood that such indemnified party shall use its reasonable efforts to realize such Tax benefit). For purposes of this Section 10.6, a "Tax benefit" means an amount by which the Tax ------------ ----------- liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Tax Authority. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment hereunder or credit; furtherthe incurrence or payment of any indemnified Loss. For purposes of this Section 10.6, a Tax benefit is "currently realizable" to the extent that ------------- --------------------- such Tax benefit can be realized in the Indemnified Party cannot utilize current taxable period or year or in any Tax benefit Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the indemnity claim. The amount of any increase, reduction or payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870-AD or successor form) with respect to a Loss in the Tax period of indemnified party's liability for Taxes, and payments between the parties to this Agreement to reflect such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement adjustment shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for if necessary. Any indemnity payment under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything X shall be treated as an adjustment to the contrary hereinvalue of the asset --------- upon which the underlying claim was based, unless a final determination (which shall include the parties agree that indemnifiable Losses (aexecution of a Form 870-AD or successor form) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect the indemnified party or consequential damages in excess any of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect its Affiliates causes any such payment not to a breach be treated as an adjustment to the value of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)asset for United States federal income tax purposes.

Appears in 1 contract

Samples: Asset Purchase Agreement (Agway Inc)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates indemnified party under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, Loss and shall be adjusted (a) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (b) reduced to take account of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of income, gain, loss deduction or credit resulting before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. The amount of the Loss giving rise to indemnification upon actual recognition arising out of any item included as a liability in calculating Closing Working Capital shall be calculated net of the amount so included. The amount of the Loss arising out of any reduction in value of any Current Asset acquired at the Closing shall be calculated net of the reported value of such loss deduction Current Asset used in calculating Closing Working Capital. Losses shall not be limited to matters asserted by third parties, but includes Losses incurred or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss sustained by an indemnified party (as defined below) in the Tax period absence of third party claims. Payments by an indemnified party of amounts for which such Loss or in the Tax period any indemnification payment indemnified party is indemnified hereunder shall not be a condition precedent for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for recovery under this Article VIII or Article IX VIII; PROVIDED, HOWEVER, that if an indemnified party subsequently is paid any portion of such amounts by a third party, that any such portion (net of reasonable costs incurred by the indemnified party in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (cconnection with obtaining such amount) Notwithstanding anything shall be paid to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)indemnifying party.

Appears in 1 contract

Samples: Asset Purchase Agreement (Broadwing Inc)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under to any Indemnified Party pursuant to this Article VIII or Article IX shall be calculated giving effect to (net of) (i) any amounts actually recovered by such Indemnified Party under any insurance policies with respect to such Loss or from any third-party; (ii) any amounts accrued or reserved for on the Company Financial Statements; and (iii) the amount of any amounts recovered Tax benefits actually realized by such Indemnified Party (or its affiliates) with respect to such Loss (each, a “Loss Reduction Amount”). If the amount of any Loss incurred by an Indemnified Party for which an indemnification payment has been made at any time prior to the final distribution of the Escrow Account is reduced by a Loss Reduction Amount, the amount of such Loss Reduction Amount (less any costs, expenses or premiums incurred in connection therewith) shall promptly be repaid by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by to the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted to take account Indemnifying Party. For the avoidance of the actual amount of any Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detrimentdoubt, the parties acknowledge and agree that an Indemnified Party shall be deemed to recognize have “actually realized” a Tax benefit to the extent that, and receive items at such time as, the amount of loss deduction Taxes payable by such Indemnified Party is reduced below the amount of Taxes that such Indemnified Party would be required to pay but for the incurrence or credit resulting from the Loss giving rise to indemnification upon actual recognition payment of such loss deduction indemnified amount, taking into account all other expenses, deductions or credit; furthercredits prior to the indemnifiable Loss. Upon making a full indemnity payment, the Indemnifying Party shall, to the extent that of such indemnity payment, be subrogated to all rights of the Indemnified Party canagainst any third-party in respect of the Loss to which the indemnity payment relates. The Company Indemnifying Parties shall not utilize have any Tax benefit with respect obligation to indemnify any Parent Indemnified Party for any Loss, to the extent such Loss was included as a Loss Liability in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days calculation of the utilization of such Tax benefitNet Merger Consideration pursuant to Article II as reflected on the Final Allocation Schedule. (b) Notwithstanding anything to the contrary contained herein, no indemnification elsewhere in this Agreement and except with respect to Loss arising due to fraud (which remedy shall be provided limited to any Persons who committed such fraud), neither Parent nor the Company Indemnifying Parties (or any of their respective Affiliates) shall, in any event, be obligated to indemnify any Parent Indemnified Party or any Company Indemnified Party, as the case may be, for any (i) consequential, incidental or special damages (including, multiple-based damages, loss of future revenue or income, loss of business reputation or opportunity, diminution in value, business interruption, or cost of capital), or (ii) punitive or exemplary damages, except to the extent that any Third-Party Claim for which a party seeks indemnification under this Article VIII or Article IX in respect of any special or punitive includes such damages (other than punitive damages soughttogether, awarded or otherwise imposed in any Third-Party Claim“Special Damages”). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed Nothing in this Agreement shall in any Third-Party Claim) and (c) exclude Taxes payable by way restrict or limit the general obligation at law of an Indemnified Party as a result to mitigate any Loss which it may suffer or incur by reason of the breach by an Indemnifying Party of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect representation, warranty or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)covenant hereunder.

Appears in 1 contract

Samples: Merger Agreement (DG FastChannel, Inc)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX ARTICLE XI by the Indemnifying Party shall be net of take into account any (i) amounts recovered by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by from any Governmental Entity or other Person with respect alleged to such Loss, be responsible therefor and shall be adjusted to take account of (ii) the actual amount of any Tax benefit or Tax detriment Benefit realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses and (iii) any Tax payable as a result of the receipt or accrual of any indemnity payment hereunder. In computing If the Indemnified Party actually receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Tax benefit Indemnified Party in collecting such amount. The Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance coverage or Tax detrimentfrom such other party alleged to have responsibility therefor prior to making any claim for indemnification under this ARTICLE XI to the extent recovery under such coverage or from such other party is reasonably likely to be successful; provided, that the Indemnified Party shall not be required to institute any suit, claim or action to collect any such amounts as a condition to making any claim for indemnification under this ARTICLE XI. If an Indemnified Party receives an amount under insurance coverage or from such other party subsequent to any indemnification provided by an Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for amounts paid by the Indemnifying Party. (b) The Indemnifying Party shall not be liable under this ARTICLE XI for any (i) Losses relating to any matter to the extent that (A) a specific liability or reserve relating to such matter in an amount adequate to cover all Losses related to such matter is identified on SCHEDULE 11.8(B), other than, for the avoidance of doubt, matters that are subject to indemnification under SECTION 11.4(VII) or (B) the Indemnified Party had otherwise been adequately compensated for such matter in a readily identifiable manner pursuant to the Closing Date Payment adjustment under SECTION 2.2, (ii) Losses that are for punitive damages, (iii) Losses for lost profits or (iv) Losses based upon any multiplier of the Acquired Companies' earnings, including, without limitation, earnings before interest, tax, depreciation or amortization or any similar valuation metric, in each case under clauses (ii), (iii) and (iv), other than with respect to a claim for punitive damages, lost profits or based on such a multiplier that is recovered by a third party. (c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party could have recovered all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall be deemed assign such of its rights to recognize and receive items of loss deduction or credit resulting from the Loss giving rise proceed against such third party as are necessary to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse permit the Indemnifying Party for to recover from such third party the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitindemnification payment. (bd) Notwithstanding anything The Indemnified Parties shall use, and shall cause their respective Affiliates to use, commercially reasonable efforts to mitigate and otherwise minimize their Losses to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect maximum extent reasonably possible upon and after becoming aware of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything event which would reasonably be expected to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving give rise to the any Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Stock Purchase Agreement (Ames True Temper, Inc.)

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under this Article VIII or Article IX X shall be reduced by, and the indemnified party shall remain legally responsible for, such Losses to the extent, following use of commercially reasonable efforts, the indemnified party actually recovers such Losses under insurance policies or otherwise (net of any amounts recovered by Tax or expenses incurred in connection with such recovery and of any increase in premiums as a result of such recovery). Additionally, the Indemnified Party or indemnified party waives its Affiliates rights of recovery against the indemnifying party to the extent of the amount paid under any insurance policy for Losses, if such waiver is allowed under such insurance policy. If an indemnified party recovers under insurance policies or otherwise in respect of a Loss subject to indemnification hereunder after adjustment payment has been made by the indemnifying party, then the indemnified party shall reimburse the indemnifying party for future increases amounts it has paid to the indemnified party in respect of such Loss to the extent that the aggregate amounts received by the indemnified party under such insurance policies or otherwise (net of any Tax or expenses incurred in connection with such recovery and of any increase in premiums on other amounts payable by as a result of such recovery) and from the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with indemnifying party in respect to of such Loss exceed the amount of such Loss, and . (b) The amount of any Indemnification Claim shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase, if any) in the event that the tax treatment of such indemnity payment prescribed by Section 10.8 is not permitted by applicable Law and (ii) reduced to take account of any net Tax benefit or Tax detriment realized Benefit currently realizable by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. In computing To the extent such Indemnification Claim does not give rise to a currently realizable Tax Benefit, if the amount of any such Tax benefit or Tax detriment, the Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to which any Indemnification Claim is made gives rise to a Loss in subsequently realized Tax Benefit to the Tax period of indemnified party that made the Indemnification Claim, such Loss or in indemnified party shall refund to the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for indemnifying party the amount of such Tax benefit upon actual utilization of such Benefit (grossed-up to reflect any Tax benefit Benefit currently realized by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party indemnified party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35making such refund payment) when, as and if realized (it being understood that such indemnified party shall use its commercially reasonable efforts to which breaches there will be no limit on the amount realize such Tax Benefit). For purposes of indirect or consequential damages that may be recovered by Buyer).this Section 10.6,

Appears in 1 contract

Samples: Asset Purchase Agreement

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under this Article VIII or Article IX X shall be calculated (a) net of any duplicative amounts recovered by the Indemnified Party or its Affiliates any Indemnitee under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person from third Persons with respect to such Losses; (b) net of any Tax Benefit incurring to any Indemnitee on account of such Loss. If an Indemnitee receives an amount under insurance coverage or from a third party with respect to Losses that have been satisfied by a release of any of the Escrow Funds, then such Indemnitee shall promptly deposit such amount (up to the amount of the Escrow Funds released for such purpose) into the Escrow Account and such amount shall be adjusted to take account part of the actual Escrow Funds thereafter; provided, however, than an Indemnitee shall not be required to deposit into the Escrow Account any released Escrow Funds to the extent such funds are released to cover the uninsured portion of any Losses otherwise indemnifiable under this Article X. The amount of any Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party Losses for which indemnification is provided under this Article X initially shall be deemed determined without regard to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; furtherany Tax Benefit. However, to the extent that the Indemnified Party cannot utilize any Indemnitee recognizes a Tax benefit Benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for Losses made hereunder, such Loss is received, Indemnitee shall pay to the Indemnified Party shall reimburse the Indemnifying Party for Indemnitor the amount of such Tax benefit upon actual utilization Benefit (but not in excess of the indemnification payment or payments actually received from the Indemnitor with respect to such Losses) at such time or times as and to the extent that the Indemnitee actually realizes such Tax benefit Benefit through an actual reduction in Tax paid, calculated by computing the Indemnified Party. Such payment amount of Taxes before and after inclusion of any Tax items attributable to such Losses for reimbursement shall be which indemnification was made and treating such Tax items as the last items claimed for any taxable period; provided that, if any subsequent Tax adjustments are made relating to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided Indemnitee for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party taxable period as a result of or in settlement of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided audit or other administrative proceeding that results in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages any change in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may any Tax Benefit to the Indemnitee, appropriate payments will be recovered by Buyer)made between the Indemnitor and the Indemnitee to properly reflect such adjustment amount.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Macquarie Infrastructure CO LLC)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article VIII Section 10.1, 10.2 or Article IX 10.3 shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment with respect to such Loss and of any amounts recovered pursuant to third-party indemnification agreements, adjusted in accordance with Section 10.10(b) and characterized in accordance with Section 10.11. To the extent that indemnification for future increases in premiums on other any Loss is provided under Sections 10.1, 10.2 or 10.3 and subsequently amounts payable are recovered by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person under insurance policies with respect to such Loss, and shall be adjusted Loss or from any third party pursuant to take account of the actual amount of any Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detrimentthird-party indemnification agreements, the Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made pay to the Indemnifying Party within ten Business Days of all such amounts recovered by the utilization Indemnified Party promptly following the receipt of such Tax benefitamounts. (b) Notwithstanding anything to To the contrary contained herein, no indemnification shall be extent provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree amount of any Loss (including for purposes of this Section 10.10(b), any liability for Taxes) that indemnifiable Losses gives rise to an indemnification payment pursuant to this Agreement shall be (awithout duplication) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from increased by any Taxes incurred by the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of the receipt of the indemnity payment (as increased pursuant to this Section 10.10(b) and (ii) reduced to the extent provided in this Section 10.10(b) by any decrease in Taxes as a result of Tax deduction or credit (a "TAX BENEFIT") actually realized by the Indemnified Party as a result of the event giving rise to the indemnity payment. If any such Tax Benefit is actually realized before the date of an indemnification payment, such indemnification payment shall be reduced to take into the account the reduction in the relevant Loss as a result of such Tax Benefit. If such Tax Benefit is actually realized after the date of an indemnification payment but before the end of fifth year following the year in which the relevant Loss occurred, the Indemnified Party shall promptly after such Tax Benefit is actually realized make a payment to the applicable Indemnifying Party to take into account the reduction in the relevant Loss as a result of such Tax Benefit, such payments by an Indemnified Party not to exceed the indemnification payments previously received by such Indemnified Party from the Indemnifying Party in respect of such Loss. If the ceiling set forth in the last sentence of Section 10.7(a) or Section 10.7(b), as the case may be, has been met, no further payments to the applicable Indemnifying Party described in the preceding sentence shall be required to be made. A Tax Benefit that results from an event giving rise to the indemnity payment shall be considered actually realized by an Indemnified Party only to the extent that, but for such Tax Benefit, such Indemnified Party's Tax liability would be higher than it is with such Tax Benefit (e.g., deductions credits or losses of the Indemnified Party that do not result from the event giving rise to the indemnity 128 payment shall be deemed to be used prior to the use of any deduction, credit or loss that does result from the event giving rise to the indemnity payment). If a realized Tax Benefit that has been taken into account under this Agreement being treated Section 10.10(b) is rendered unavailable by reason of a carryback of any Tax Benefit from a subsequent period, the relevant Taxing Authority as income; Indemnifying Party shall make an appropriate reconciliation payment to the Indemnified Party, provided that the Indemnified Party shall be required to take such previously realized Tax Benefit into account in no event accordance with this Section 10.10(b) without regard to the five year limitation described above. The amount of any increase, reduction or payment hereunder shall CSL be obligated adjusted to indemnify Buyer reflect any final determination with respect to indirect the Indemnified Party's liability for Taxes, and if necessary, payments shall be made between the parties to this Agreement to reflect such adjustment. Determinations of any Tax Benefit or consequential damages in excess Tax cost relating to NBC and its Subsidiaries shall for purposes of U.S.$25,000,000 this Section 10.10 be made using the NBC Standalone Tax Principles. No assignment (including any assignment of the NBC Shares) by any party shall increase the other party's obligations under this Section 10.10(b) other than by virtue of any reduction in respect the USH3 Common Equity Ratio or GE Common Equity Ratio. For purposes of indirect applying this Section 10.10(b) to any indemnity for Taxes under Article 11, GE and consequential damage arising with respect Vivendi shall be deemed to a breach of the representations be Indemnified Parties and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered Tax Benefits shall include any such benefits realized by Buyer)their respective Subsidiaries.

Appears in 1 contract

Samples: Business Combination Agreement (Vivendi Universal)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX Section 9.02 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by from any Governmental Entity or other Person with respect alleged to such Lossbe responsible therefor, and shall be adjusted to take account of the actual amount of (ii) any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 9.02; provided that (x) no such reduction for such Tax benefit shall occur prior to the time at which such Tax benefit is actually realized and (y) to the extent that such net Tax benefit is actually realized after the date on which payment in respect of such Loss is made or deemed made under Section 9.02 (but during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 9.02), the Indemnified Party shall reimburse the party or parties obligated to indemnify such Indemnified Party in respect of such Loss promptly following the time at which such Tax Benefit is actually realized. The Indemnified Party shall be deemed to have “actually realized” a net Tax benefit to the extent that, and at such time as, the amount of Taxes paid by the Indemnified Party or any of its Affiliates is reduced below the amount of Taxes that such Persons would have been required to pay but for the Tax benefit. In computing the amount of any such Tax benefit or Tax detrimentbenefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any items arising from the Loss giving rise to incurrence or payment of any Losses for which indemnification upon actual recognition of such loss deduction or credit; further, to the extent that is provided under Section 9.02. If the Indemnified Party cannot utilize receives any Tax benefit with respect amounts under applicable insurance policies, or from any other Person alleged to a Loss in the Tax period of such Loss or in the Tax period be responsible for any Losses, subsequent to an indemnification payment for by the Indemnifying Party, then such Loss is received, the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount of such Tax benefit upon actual utilization of such Tax benefit received by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying , net of any expenses incurred by such Indemnified Party within ten Business Days of the utilization of in collecting such Tax benefitamount. (b) Notwithstanding anything The rights of the Purchaser Indemnified Parties to indemnification under Section 9.02 hereof shall not be affected by knowledge of any information acquired by such Purchaser Indemnified Party except to the contrary contained hereinextent such information was disclosed at the Purchaser’s written request and in writing to the Purchaser or its Affiliates or representatives, no indemnification shall be provided for under this Article VIII in each case prior to the date hereof or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed expressly disclosed in any Third-Party Claim)TEO Company Disclosure Document. (c) Notwithstanding anything Each Indemnified Party must mitigate to the contrary hereinextent required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the parties agree that indemnifiable Losses (a) may include indirect Indemnified Party must notify the Indemnifying Party and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise pay to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Indemnifying Party Claim) and (c) exclude Taxes payable by an the extent of the value of the benefit to the Indemnified Party as a result of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) Business Days after the benefit is received. (d) Each Indemnified Party shall use reasonable efforts to collect any indemnification payment amounts available under this Agreement being treated insurance coverage for any Losses payable under Section 9.02. (e) For the avoidance of doubt, in calculating Losses incurred by any Purchaser Indemnified Party, regard should be had to the proportionate share of the economic interest in the TEO Companies represented by the relevant Taxing Authority as income; provided that in Shares and no event Seller shall CSL be obligated to indemnify Buyer with respect the Purchaser Indemnified Parties for Losses to indirect or consequential damages in excess of U.S.$25,000,000 (the extent suffered by any other than Person in respect of indirect and consequential damage arising with respect to a breach of such Person’s proportionate economic interest in the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)TEO Companies.

Appears in 1 contract

Samples: Stock Purchase Agreement (Telecom Italia S P A)

Calculation of Losses. (a) The amount of any Loss for which subject to indemnification is provided under this Article VIII hereunder or Article IX of any claim therefor shall be calculated net of any amounts actually recovered by the Indemnified Party or its Affiliates indemnified party under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity policies, indemnities or other Person reimbursement arrangements with respect to such LossLosses, less the costs of collection, deductible or retention amounts, and any related increases in insurance costs or premiums caused as a result of such claim. If Losses are covered by insurance policies, the indemnified party will use commercially reasonable efforts to recover under such policies; provided, that the indemnified party shall have no obligation to pursue litigation under such insurance policies, indemnities or other reimbursement arrangements. (b) The amount of any Loss subject to indemnification hereunder or of any claim therefor shall be adjusted to take account of the actual amount calculated net of any Tax benefit or Tax detriment actually realized by the Acquiror Indemnified Party or any Affiliate or group of Affiliates on account of such Loss on or before the close of the third (3rd) year after the year in which the Loss is incurred, calculated on a with and without basis. If the Acquiror Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of realizes any such Tax benefit or Tax detrimentafter an indemnification payment is made in respect of such Losses, the Acquiror Indemnified Party shall promptly pay or cause to be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, paid to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for indemnifying party the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made equal to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (bc) Notwithstanding anything In no event shall a party be entitled to the contrary contained herein, no indemnification shall be provided recover or make a claim for under this Article VIII or Article IX any amounts in respect of any special diminution of value, damages based on multiples of earnings or revenue, consequential, special, incidental, opportunity cost or indirect damages or punitive damages (other than punitive except to the extent any such damages sought, awarded are actually paid or otherwise imposed in any Thirdpayable to third-Party Claim)parties. (cd) Notwithstanding anything Each of the parties agrees to take all commercially reasonable steps to mitigate their respective Losses upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Losses that are indemnifiable hereunder. (e) In any case where an indemnified party recovers from third Persons (including any insurer) any amount in respect of a matter with respect to which an indemnifying party has indemnified it pursuant to this Article IX, such indemnified party shall promptly pay over to the contrary hereinindemnifying party the amount so recovered, but (x) not in excess of the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages sum of (i) were reasonably foreseeable any amount previously so paid by the indemnifying party to or on behalf of the indemnified party in respect of such matter and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated amount expended by the relevant Taxing Authority as income; provided that indemnifying party in no event shall CSL be obligated to indemnify Buyer with respect to indirect pursuing or consequential damages in excess defending any claim arising out of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)such matter.

Appears in 1 contract

Samples: Contribution Agreement (Cybin Inc.)

Calculation of Losses. (a) The amount of any Loss taken into account for all purposes under this Article 8 shall be reduced by any amounts recovered by the Indemnified Party under any insurance policies in effect prior to the Closing Date. With respect to any such insurance policies and subject to the terms thereof, (i) each Company Entity agrees not to cancel or terminate prior to the end of their then current term any of such policies (including any directors and officers liability coverage) the premiums for which have been paid in full by the Closing Date, and (ii) the Indemnitor shall be subrogated to the rights of the Company Entities thereunder to the extent of payments made by such Indemnitor. (b) Notwithstanding anything in Article 8 to the contrary, no Indemnified Party or its successors or assigns shall have any right or entitlement to indemnification from an Indemnitor for any Losses relating to any matter arising under the provisions of this Agreement, to the extent that any such Indemnified Party or its successors and assigns had already recovered Losses with respect to the same matter pursuant to any other provision of this Agreement or the Canadian Purchase Agreement, and such Indemnified Parties shall be deemed to have waived and released any claims for such Losses and shall not be entitled to assert any such claim for indemnification for such Losses. (c) The amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted reduced to take account of the actual amount of any net Tax benefit or Tax detriment actually realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detrimentbenefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. The present value of any tax benefits to indemnification upon actual recognition be realized in the future shall be reasonably estimated by the Parties for purposes of this Section 8.7(c). If the Parties are unable to agree on such present value, the matter shall be referred to the Settlement Accountants whose reasonably estimation of such loss deduction or credit; further, to present value shall be binding on the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period Parties. (d) For purposes of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for determining the amount of such Tax benefit upon actual utilization Losses resulting from a breach by Sellers or USA of such Tax benefit a representation or warranty, but not whether the breach itself has occurred, any materiality qualification or limitation contained in the applicable representation or warranty (whether by the Indemnified Party. Such payment for reimbursement terms “material” or “materiality” or by reference to a “Material Adverse Effect,” a “Material Adverse Change,” or words of similar meaning) shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitdisregarded. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Stock Purchase Agreement (Lululemon Corp.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX Section 4.1 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on or from any other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect person alleged to such Lossbe responsible therefor, and shall be adjusted to take account of the actual amount of any Tax (ii) net tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1; provided that (x) no such reduction for such tax benefit shall occur prior to the time at which such tax benefit is actually realized and (y) to the extent that such net tax benefit is actually realized after the date on which payment in respect of such Loss is made or deemed made under Section 4.1 (but during a taxable year that includes or precedes the taxable period in which payment in respect of such Loss is due under Section 4.1), the Indemnified Party shall reimburse the party or parties obligated to indemnify such Indemnified Party in respect of such Loss promptly following the time at which such tax benefit is actually realized. The Indemnified Party shall be deemed to have “actually realized” a net tax benefit to the extent that, and at such time as, the amount of taxes paid by the Indemnified Party or any of its Affiliates is reduced below the amount of taxes that such persons would have been required to pay but for the tax benefit. In computing the amount of any such Tax benefit or Tax detrimenttax benefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any items arising from the Loss giving rise incurrence or payment of any Losses for which indemnification is provided under Section 4.1. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other person alleged to be responsible for any Losses, subsequent to an indemnification upon actual recognition payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such loss deduction or credit; further, Indemnified Party in collecting such amount. (b) Each Indemnified Party must mitigate to the extent that required by and in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party cannot utilize under any Tax indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit with to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two (2) business days after the benefit is received. (c) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 4.1 and the Indemnified Party could have recovered all or a Loss in the Tax period part of such Loss or in Losses from a third party (a “Potential Contributor”) based on the Tax period any indemnification payment for such Loss is receivedunderlying claim asserted against the Indemnifying Party, the Indemnified Party shall reimburse assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party for to recover from the Potential Contributor the amount of such Tax benefit upon actual utilization payment. (d) The Assignor (including any officer or director of such Tax benefit Harpoon) shall not have any right of contribution, indemnification or right of advancement from Harpoon or the Assignee with respect to any Loss claimed by the an Indemnified Party. Such payment The Assignor shall not make any claim for reimbursement shall be made monetary damages or indemnification against either Harpoon or the Assignee or any of their respective Affiliates with respect to the Indemnifying any claim properly brought by an Assignee Indemnified Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded IV or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything relating to the contrary hereinthis Agreement, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from Promissory Note or the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Transactions.

Appears in 1 contract

Samples: Assignment Agreement (Fintech Holdings Inc.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article VIII clause (i) of Section 7.02(a) or Article IX clause (i) of Section 7.03(a) shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates under insurance policies (after adjustment reduction for future increases any costs or expenses incurred in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect to such Loss, . Each of the parties hereto acknowledges and agrees that neither the Seller nor the Purchaser shall have any obligation to maintain insurance except as required under the Supply Agreement or be obligated to have to resort to litigation against insurance carriers in order to pursue any insurance claims. (b) The amount of any Loss for which indemnification is provided under clause (i) of Section 7.02(a) or clause (i) of Section 7.03(a) shall be adjusted (a) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (b) reduced to take account of any net Tax benefit or Tax detriment immediately realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party in cash arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of income, gain, loss deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment under clause (i) of Section 7.02(a) or credit; further, clause (i) of Section 7.03(a) or the incurrence or payment of any indemnified Loss. Any indemnity payment under clause (i) of Section 7.02(a) or clause (i) of Section 7.03(a) shall be treated as an adjustment to the extent that Purchase Price for Tax purposes, unless a final determination (which shall include the Indemnified Party cannot utilize any Tax benefit execution of a Form 870-AD or successor form) with respect to a Loss in the indemnified party or any of its Affiliates causes any such payment not to be treated as an adjustment to such price for federal income Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitpurposes. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Asset Purchase Agreement (King Pharmaceuticals Inc)

Calculation of Losses. (a) The amount of any Indemnifiable Loss for which indemnification is provided under this Article VIII or Article IX X shall be (a) net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment with respect to such Indemnifiable Loss (including to the extent such Indemnifiable Loss is reinsured by OneBeacon, Liberty or any of their respective Affiliates under the Indemnity Reinsurance Agreements) PROVIDED, that the Indemnified Party shall use commercially reasonable best efforts to collect the claim proceeds under such insurance policies with respect to such Indemnifiable Loss prior to seeking indemnification for future increases in premiums on other amounts payable such Indemnified Loss under this Article X and (b) with respect to this Agreement, the License Agreements, the Transition Services Agreement and the Imaging Transition Services Agreement, net of any damages recovered with respect to Indemnifiable Losses arising from the same occurrence under any of such agreements, and shall be (i) increased to take account of any net Tax cost incurred by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to arising from the receipt of indemnity payments hereunder (grossed up for such Loss, increase) and shall be adjusted (ii) reduced to take account of the actual amount of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Indemnifiable Loss. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party shall be deemed to recognize and receive all other items of income, gain, loss deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect receipt of any special indemnity payment hereunder or punitive damages (other than punitive damages sought, awarded the incurrence or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result payment of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Indemnifiable Loss.

Appears in 1 contract

Samples: Master Agreement (White Mountains Insurance Group LTD)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX XI by the Indemnifying Party shall be net of any (i) amounts recovered by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on other amounts payable by (but not including (y) any self-insurance of Parent or an Affiliate of Parent (including any Acquired Company), or (z) any insurance policy under which the Indemnified Party Company Subsidiary is the insurer to Parent or reimbursement provided by an Affiliate of Parent (including any Governmental Entity Acquired Company)) or from any other Person with respect alleged to such Loss, be responsible therefor and shall be adjusted to take account of (ii) the actual amount of any Tax benefit or Tax detriment reduction in Taxes realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses. In computing If the Indemnified Party receives any amounts under such applicable insurance policies or from any other Person alleged to be responsible for any Losses or realizes a reduction in Taxes attributable to a Loss subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made, expense incurred or reduction in Taxes realized by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by or realized by the Indemnified Party, net of any expenses incurred by such Tax benefit Indemnified Party in collecting such amount. The Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance coverage or Tax detrimentfrom such other Person alleged to have responsibility therefore, provided that the Indemnified Party shall have the right to seek, claim and collect indemnification under this Article XI without first being required to assert any claim, right or remedy with respect to such insurance coverage or other Persons. The Indemnifying Party shall be deemed subrogated to recognize and receive items all rights of loss deduction the Indemnified Party in respect of any Losses indemnified by the Indemnifying Party. (b) The Indemnifying Party shall not be liable under this Article XI for any (i) Losses relating to any matter to the extent that there is included in the final Statement of Closing Net Working Capital determined in accordance with Section 3.4, a specific liability or credit resulting from reserve relating to such matter, (ii) Losses relating to any matter to the Loss giving rise extent resolved in accordance with Section 3.5, (iii) Losses to indemnification upon actual recognition of such loss deduction the extent the Indemnified Party had otherwise been compensated therefor pursuant to the adjustments to the Merger Consideration pursuant to Section 3.4 or credit; further, (iv) any Losses to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in has already previously recovered the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX same Losses in respect of any special or punitive damages the same claim (other than punitive damages soughti.e., awarded or otherwise imposed in any Third-Party Claimno “double counting” of Losses). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by For purposes of determining whether an Indemnified Party as has a result right to indemnification under Section 11.3(a) or Section 11.4(a) and for determining the amount of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer Losses with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of thereto, the representations and warranties set forth contained in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as this Agreement that are qualified by reference to which breaches there will “material,” “materially,” “Material Adverse Change,” “Material Adverse Effect,” or any similar term shall be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)deemed to have been made without giving effect to such materiality qualifiers.

Appears in 1 contract

Samples: Merger Agreement (Paychex Inc)

Calculation of Losses. (a) The amount of any Loss or Tax Loss for which indemnification is provided under this Article VIII or Article IX shall be (i) net of any amounts actually recovered and received by the Indemnified Party indemnified party as a result of any indemnification by a third party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, Loss and shall be adjusted (ii) reduced to take account of the actual amount of any net Tax benefit currently realized (in the form of cash from, or Tax detriment realized as a reduction of a cash liability owed to, a Taxing Authority, or in the form of a deferred tax asset) by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the circumstances giving rise to the incurrence or payment of any such Loss. In computing For purposes of the amount preceding sentence, the deferred tax asset shall be calculated net of any such Tax benefit or Tax detrimentvaluation allowance reasonably determined by the Company, except that in calculating the valuation allowance, the Indemnified Party underlying tax attribute shall be deemed to recognize expire after five calendar years (if it does not expire earlier under then-Applicable Law). Purchaser, the Company and receive items the Subsidiaries shall provide Seller and its affiliates with reasonable access to information, including copies of loss deduction relevant Tax Returns or credit resulting from portions thereof, together with accompanying schedules, related workpapers and documents relating to rulings or other determinations by Taxing Authorities, as are reasonably necessary for the Loss giving rise to indemnification upon actual recognition determination of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any net Tax benefit with respect to a Loss in the Tax period of (and may redact such Loss or in the Tax period any indemnification payment for such Loss information as is received, the Indemnified Party shall reimburse the Indemnifying Party not reasonably necessary for the amount determination of any net Tax benefit), and Seller shall, and shall cause its affiliates to, keep all such Tax benefit upon actual utilization information and items confidential and shall use such information solely in connection with the determination of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such any net Tax benefit. (b) Notwithstanding anything If any insurance proceeds or other amounts are received by any Purchaser Indemnitee or Seller Indemnitee after receipt of any indemnification payment pursuant to this Article VIII, Purchaser or Seller, as applicable, shall promptly repay to the contrary contained hereinindemnifying party such portion of such indemnification payment equal to the amounts so recovered or realized. (c) The amount of the Loss or Tax Loss arising out of any item reflected as a liability or provided for or reserved against in calculating the Closing Date Book Value (as finally determined under Section 1.04) shall be calculated net of the amount so reflected, provided for or reserved against. Notwithstanding any other provision of this Agreement to the contrary, no indemnification Purchaser Indemnitee shall be provided for entitled to indemnification under this Article VIII or Article IX for any Losses or Tax Losses to the extent such Losses or Tax Losses are reflected, provided for or reserved against in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim)the Closing Date Book Value. (cd) For the avoidance of doubt, neither Seller nor the Company makes any representation, warranty or guarantee whatsoever that the Insurance Reserves held by or on behalf of the Company and the Subsidiaries are or will be sufficient for the purposes for which they were established, and nothing in this Agreement shall be construed as providing the economic equivalent of any such representation, warranty or guarantee. Notwithstanding anything any other provision of this Agreement to the contrary hereincontrary, the parties agree that indemnifiable no Purchaser Indemnitee shall be entitled to indemnification under this Article VIII for any Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result extent such Losses arise out of any failure of the Insurance Reserves held by or on behalf of the Company and the Subsidiaries to be sufficient for the purposes for which they were established and regardless of whether such Insurance Reserves are general in nature or specific to a particular matter. (e) No indemnified party shall be entitled to indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer Article VIII or Article IX with respect to any Losses or Tax Losses that are in the nature of punitive, incidental, consequential, special, treble or indirect damages or consequential damages based on any multiple, including business interruption, loss of future revenue, profits or income, or loss of business reputation or opportunity, in excess each case of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach any kind or nature, regardless of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to form of action through which breaches there will be no limit on any of the amount foregoing are sought unless such party satisfies all of indirect or consequential damages that may be recovered by Buyer)the elements necessary for recovery of such Losses under the laws of the State of New York.

Appears in 1 contract

Samples: Stock Purchase Agreement (White Mountains Insurance Group LTD)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX ARTICLE VII by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on or from any other amounts payable Person alleged to be responsible therefor and (ii) the Tax Benefits actually recognized by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted to take account of the actual amount of any Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses in the taxable year of such Loss or the succeeding taxable year. In computing For the avoidance of doubt, Tax Benefits actually recognized does not include any increase in any net operating loss of any Indemnified Party or any increase in the tax basis of any asset held by, or other Tax attribute of, any Indemnified Party until such Tax attribute actually results in a refund, credit for overpayment or reduction in Tax payments. If the Indemnified Party receives a Tax Benefit or any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment in the amount received by the Indemnified Party, net of any expenses reasonably incurred by such Tax benefit Indemnified Party in collecting such amount (including any deductible amounts, attorney’s fees and any increased insurance premiums). If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party could have recovered all or Tax detrimenta part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall be deemed assign such of its rights to recognize and receive items of loss deduction or credit resulting proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the Loss giving rise to indemnification upon actual recognition amount of such loss deduction indemnification payment. (b) The Indemnifying Party shall not be liable under this ARTICLE VII for Losses that are for special, consequential, exemplary or credit; further, punitive damages or multiples of earnings except to the extent that the Indemnified Party cannot utilize is obligated to pay any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period third party any indemnification payment amounts for such Loss is receivedspecial, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained hereinconsequential, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special exemplary or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-multiples of earnings as a result of a Third Party Claim). (c) Notwithstanding anything to No claim shall be made for any Losses which are accounted for in calculating the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any ThirdFinal Net Non-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Cash Working Capital.

Appears in 1 contract

Samples: Stock Purchase Agreement (Gibraltar Industries, Inc.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX X by the Indemnifying Party shall be (i) net of any amounts actually recovered by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on or from any other amounts payable Person alleged to be responsible therefor, and (ii)(a) increased to take account of any net Tax cost actually incurred by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to arising from the receipt of indemnity payments hereunder (grossed up for such Lossincrease), and shall be adjusted (b) reduced to take account of the actual amount of any net Tax benefit or Tax detriment actually realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Lossindemnified amount. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment hereunder or credit; further, to the extent that incurrence or payment of any indemnified amount. If the Indemnified Party cannot utilize receives any Tax benefit with respect amounts under applicable insurance policies, or from any other Person alleged to a Loss in the Tax period of such Loss or in the Tax period be responsible for any Losses, subsequent to an indemnification payment for by the Indemnifying Party, then such Loss is received, the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount of such Tax benefit upon actual utilization of such Tax benefit received by the Indemnified Party, net of any direct, out‑of‑pocket expenses reasonably incurred by such Indemnified Party in collecting such amount. Such payment for reimbursement The Indemnified Party shall be made use Reasonable Efforts to collect any amounts available under such insurance coverage or from such other Person alleged to have responsibility therefor. Each Party hereby waives, to the Indemnifying extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. Nothing in this Section 10.6 requires any Indemnified Party within ten Business Days to carry any particular type or amount of the utilization of such Tax benefitinsurance coverage. (b) Notwithstanding anything any other provision of this Agreement to the contrary contained hereincontrary, no indemnification the Indemnifying Party shall not be provided for liable under this Article VIII X for any (i) Losses relating to any matter to the extent that (A)(1) there is included in the Latest Balance Sheet a specific liability or Article IX in respect reserve relating to such matter, (2) such matter is an Assumed Liability, and (3) the Losses related to such matter do not exceed the amount of such specific liability or reserve; (B) the Indemnified Party shall have otherwise been fully compensated for such matter pursuant to the Purchase Price adjustment under Section 2.2; or (C) the Indemnified Party shall have otherwise been compensated for such matter pursuant to, or the Loss was taken into account under, any special other provision of this Agreement, so as to avoid duplication or "double counting" of the same Loss; (ii) Losses for punitive damages brought by the Indemnified Party against the Indemnifying Party (other than Losses for punitive damages sought, awarded or otherwise imposed in any Third-which are part of a Third Party Claim); or (iii) Losses determined or calculated based upon any multiplier of profits, earnings or cash flow. (c) Notwithstanding anything The Indemnified Parties shall take, and shall cause their respective Affiliates to take, Reasonable Efforts to mitigate and otherwise minimize their Losses to the contrary hereinmaximum extent reasonably possible upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses. (d) The Parties intend that each representation, warranty, covenant and agreement contained in this Agreement has independent significance. If any Party has breached any representation, warranty, covenant or agreement contained in this Agreement in any respect, the parties agree fact that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise there exists another representation, warranty, covenant or agreement relating to the Losses, same subject matter (bregardless of the relative levels of specificity) exclude punitive damages (but include punitive damages sought, awarded which the Party has not breached shall not detract from or otherwise imposed mitigate the fact that the Party is in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1first representation, 3.2warranty, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect covenant or consequential damages that may be recovered by Buyer)agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Post Holdings, Inc.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX XI by the Indemnifying Party shall be net of (i) any amounts actually recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases in premiums on other amounts payable by (including the Indemnified Party R&W Insurance Policy) or reimbursement provided by from any Governmental Entity or other Person with respect alleged to such Lossbe responsible therefor, calculated after giving effect to any applicable deductible or retention and any costs of recovery, including actual and anticipated premium increases (retroactive or otherwise), any reimbursement obligation and any other cost related to the applicable insurance claim, and shall be adjusted to take account of (ii) the actual amount of any Tax benefit or Tax detriment reduction in Taxes actually realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party thereof arising from the incurrence or payment of any such LossLosses. In computing the amount of any such Tax benefit or Tax detriment, If the Indemnified Party shall or any Affiliate thereof receives any amounts under applicable insurance policies (including the R&W Insurance Policy), or from any other Person alleged to be deemed to recognize and receive items of loss deduction responsible for any Losses or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect actually realizes a reduction in Taxes attributable to a Loss in the Tax period of such Loss or in the Tax period any Loss, subsequent to an indemnification payment for by the Indemnifying Party, in each case that was not taken into account under the immediately preceding sentence, then such Loss is received, the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred or reduction in Taxes actually realized by such Indemnifying Party in connection with providing such indemnification payment up to the amount of such Tax benefit upon actual utilization of such Tax benefit actually received or realized by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. Such payment The Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance coverage or from such other Person alleged to have responsibility therefor provided, that, for reimbursement the avoidance of doubt, the Parent Indemnified Party is not required to assert any claims against the R&W Insurance Policy to the extent such claims are expressly excluded by the terms of the R&W Insurance Policy. Any reductions in Taxes taken into account under this Section 11.7(a) shall be made deemed to equal twenty-five percent (25%) multiplied by the Indemnifying amount of Tax deductions recognized (or reasonably expected to be recognized) by the Indemnified Party within ten Business Days of the utilization of such Tax benefitor Affiliate thereof. (b) Notwithstanding anything to the contrary contained herein, no indemnification The Indemnifying Party shall not be provided for liable under this Article VIII XI for any (i) Losses relating to any matter to the extent that there is included in the Statements or Article IX the Most Recent Financial Statements a specific liability or reserve relating to such matter or (ii) Losses for which the Indemnified Party had otherwise been compensated pursuant to the adjustments to the Merger Consideration pursuant to Section 3.4. No Indemnifying Party shall be liable hereunder in respect of any special claim if such claim would not have arisen but for a change in legislation or punitive damages (other than punitive damages sought, awarded accounting policies or otherwise imposed a change in any Thirdinterpretation of applicable Law as determined by a court or pursuant to an administration rule-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an making decision. A Parent Indemnified Party shall have no right to any indemnification for Losses consisting of or relating to Taxes with respect to any taxable period, or the portion of thereof, beginning after the Closing Date as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by BuyerSection 4.9 (Tax Matters). (c) An Indemnified Party shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate and otherwise minimize its Losses to the maximum extent reasonably possible upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses.

Appears in 1 contract

Samples: Merger Agreement (Ritchie Bros Auctioneers Inc)

Calculation of Losses. (a) The amount of any Loss Damages for which indemnification is provided under this Article VIII or Article IX 8 shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment or otherwise with respect to such Damages (net of any Tax or expenses incurred in connection with such recovery). The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies for future increases any Damages. If the Indemnifying Parties pay indemnity Damages under this Agreement, and the Indemnified Parties subsequently receive insurance proceeds for the same claim or event, then the Indemnified Parties shall refund such indemnity Damage payments to the Indemnifying Parties from such insurance proceeds to the extent that the Indemnified Party has received benefits from both sources (i.e., payments of indemnity Damages from the Indemnifying Party and such insurance proceeds) in premiums on other amounts payable excess of the amount of Damages incurred by the Indemnified Parties. (b) If the amount of any Damages for which indemnification is provided under this Article 8 gives rise to a currently realizable Tax Benefit (as defined below) to the Indemnified Party making the Claim, then the amount of Damages shall be (i) increased to take account of any net Tax cost incurred by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to arising from the receipt of indemnity payments hereunder (grossed up for such Loss, increase) and shall be adjusted (ii) reduced to take account of the actual amount of any net Tax benefit Benefit actually or Tax detriment reasonably expected to be realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from circumstances underlying or the incurrence or payment of any such LossDamages for all applicable Tax periods (past, present and future). For purposes of this Section 8.6(b), a “Tax Benefit” means an amount by which the Tax liability of the Party (or group of corporations including the Party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax benefit cost or Tax detrimentBenefit, the Indemnified indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. The amount of any increase, reduction or payment hereunder shall be adjusted to indemnification upon actual recognition reflect any final determination (which shall include the execution of such loss deduction Form 870-AD or credit; further, successor form) with respect to the extent that Indemnified Party’s liability for Taxes, and payments between the parties to this Agreement to reflect such adjustment shall be made if necessary. Any indemnity payment under this Article 8 shall be treated as an adjustment to the Purchase Price, unless a final determination (which shall include the execution of a Form 870-AD or successor form) with respect to the Indemnified Party canor any of its Affiliates causes any such payment not utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made treated as an adjustment to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitPurchase Price for United States federal income tax purposes. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Stock Purchase Agreement (North Pointe Holdings Corp)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX ARTICLE X by the Indemnifying Party shall be net of any amounts recovered (i) net proceeds realized by and paid to the Indemnified Party under its applicable insurance policies (determined after giving effect to the net present value (utilizing a discount rate equal to the short-term applicable federal rate as set forth in Section 1274(d) of the Code for the month in which any such payment of insurance proceeds is received the Indemnified Party), as determined by the Indemnified Party Party, of the aggregate future incremental premium costs incurred by the Acquired Companies as a consequence of any such Loss and/or of any such payment of insurance proceeds related to any such Loss) or its Affiliates under insurance policies from any other Person alleged to be responsible therefor (determined after adjustment for future increases in premiums on other amounts payable by giving effect to any increased costs to the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Lossresulting therefrom), and shall be adjusted to take account of (ii) the actual amount of any Tax benefit or Tax detriment as and when realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such LossLosses. In computing If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses described in clause (i) of the preceding sentence, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses reasonably incurred by such Indemnified Party in collecting such amount. The Indemnified party shall use Reasonable Efforts to collect any amounts available under such insurance coverage or from such other party reasonably alleged to have responsibility therefor (so long as the Indemnified Party has a direct cause of action against such other party). (b) The Indemnifying Party shall not be liable under this ARTICLE X for any (i) Losses relating to any matter to the extent (but only to the extent) that (A) there is included in the Closing Date Balance Sheet (as finally determined pursuant to SECTION 2.2) a specific liability or specific reserve relating to such specific type of indemnifiable Loss (but only for such Losses to the extent of the amount of any such Tax benefit specific liability or Tax detrimentspecific reserve on the Closing Date Balance Sheet (as finally determined pursuant to SECTION 2.2)), or (B) the Indemnified Party has otherwise been compensated (on a dollar-for-dollar basis) for such matter pursuant to the Purchase Price adjustment under SECTION 2.2 by virtue of such Loss being included as a Current Liability, or specifically included in an applicable reserve, in the calculation of Closing Date Net Working Capital, or (ii) Losses for lost profits resulting from business interruptions. (c) The Indemnified Parties shall take, and shall cause their respective Affiliates to take, all reasonable steps to mitigate and otherwise minimize their Losses to the maximum extent reasonably possible upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses. (d) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party could have recovered all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall be deemed assign such of its rights to recognize and receive items of loss deduction or credit resulting from the Loss giving rise proceed against such third party as are necessary to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse permit the Indemnifying Party for to recover from such third party the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitindemnification payment. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Stock Purchase Agreement (Commercial Vehicle Group, Inc.)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts (i) actually recovered by the any Indemnified Party or its Affiliates under insurance policies after adjustment for future increases or any other source of indemnification with respect to such Loss including the Alternative Arrangements, and (ii) accrued on the balance sheet of each of the PEP Companies as of the Closing Date and taken into account in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person calculation of the Purchase Price with respect to such Loss, and shall be adjusted reduced to take into account of any Tax Benefit. (b) In determining the actual amount of any Tax indemnification payment for a Loss suffered or incurred by an Indemnified Party hereunder, the amount of such Loss shall be decreased to take into account any deduction, credit or other tax benefit or Tax detriment actually realized by the Indemnified Party or any Affiliate or group of Affiliates of with respect to such Indemnified Party arising from the incurrence or payment of any such LossLoss (“Tax Benefits”). In computing the amount of any such Tax benefit or Tax detrimentBenefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition incurrence or payment of such loss deduction any indemnified Loss; provided, that, if a Tax Benefit is not realized in or credit; further, prior to the extent that taxable period during which an Indemnifying Party makes an indemnification payment or the Indemnified Party cannot utilize incurs or pays any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is receivedLoss, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made thereafter make payments to the Indemnifying Party within ten Business Days at the end of each subsequent taxable period to reflect the utilization Tax Benefit realized in each such subsequent taxable period. For purposes of such clarity, a Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification Benefit shall be provided for under this Article VIII treated as realized when it is actually realized or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim)when it is available to be realized through reasonable best efforts taken by the relevant party. (c) Notwithstanding anything Each Purchaser Indemnified party shall use reasonable best efforts to make any claims for insurance, indemnification and/or other amounts available from third party(ies) with respect to Losses for which it will seek indemnification hereunder and to diligently pursue such claims in good faith. If any such insurance proceeds, indemnification and/or other amounts are received or realized by a Purchaser Indemnified Party after payment by the Seller of any amount otherwise required to be paid to a Purchaser Indemnified Party pursuant to this Article IX, the Purchaser Indemnified Party shall repay to the contrary hereinSeller, promptly after receiving or realizing such insurance proceeds, indemnification and/or other amounts, the parties agree amount that indemnifiable Losses (a) may include indirect and consequential damages so long as the Seller would not have had to pay pursuant to this Article IX had such damages (i) were reasonably foreseeable and (ii) proximately resulted from insurance proceeds, indemnification and/or other amounts been received or realized by the events and circumstances giving rise Purchaser Indemnified Party prior to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification Seller’s payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Article IX.

Appears in 1 contract

Samples: Stock Purchase Agreement (Nn Inc)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts (a) actually recovered by the any Indemnified Party or its Affiliates under insurance policies after adjustment for future increases or any other source of indemnification with respect to such Loss, and (b) accrued on the Company or any Subsidiary’s balance sheet as of the Closing Date and taken into account in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person calculation of the Final Merger Consideration with respect to such Loss, and shall be adjusted reduced to take into account of any net Tax Benefit. All indemnification payments for Losses made pursuant to this Article VIII shall be made on an after-Tax basis. Accordingly, in determining the actual amount of any Tax indemnification payment for a Loss suffered or incurred by an Indemnified Party hereunder, the amount of such Loss shall be decreased to take into account any deduction, credit or other tax benefit or Tax detriment actually realized by the Indemnified Party with respect to such Loss after taking into account any income, gain or other tax cost realized by the Indemnified Party with respect to the accrual or receipt of any indemnification payment or any Affiliate or group of Affiliates of other payment with respect to such Indemnified Party arising from the incurrence or payment of any such LossLoss (“Tax Benefits”). In computing the amount of any such net Tax benefit or Tax detrimentBenefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition of such loss deduction accrual or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result receipt of any indemnification payment under this Agreement being treated hereunder or the incurrence or payment of any indemnified Loss; provided, that, if a net Tax Benefit is not realized in the taxable period during which an Indemnifying Party makes an indemnification payment or the Indemnified Party incurs or pays any Loss, the parties hereto shall thereafter make payments to one another at the end of each subsequent taxable period to reflect the net Tax Benefit realized by the relevant Taxing Authority as income; provided that parties hereto in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)each such subsequent taxable period.

Appears in 1 contract

Samples: Merger Agreement (Nn Inc)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under this Article VIII or Article IX XIV by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party or its Affiliates under applicable insurance policies after adjustment for future increases or from any other Person alleged to be responsible therefor, in premiums on other amounts payable each case, net of any expenses reasonably incurred by the such Indemnified Party in collecting such amounts (including, to the extent applicable, any applicable deductible, reasonable costs of collection or reimbursement provided by any Governmental Entity or other Person with respect increases to premiums directly attributable to such Lossclaims for Losses), and shall be adjusted to take account of (ii) the actual amount of any Tax benefit or Tax detriment benefits actually realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party (that is a permanent benefit and not a timing benefit) arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss Losses in the Tax period year of such Loss or in the Tax period any indemnification payment for such Loss is received, subsequent two (2) years. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount of such Tax benefit upon actual utilization of such Tax benefit received by the Indemnified Party. Such payment for reimbursement shall be made , net of any expenses reasonably incurred by such Indemnified Party in collecting such amount (including, to the Indemnifying extent applicable, any applicable deductible, reasonable costs of collection or increases to premiums directly attributable to such claims for Losses). The Indemnified Party within ten Business Days of the utilization of shall use Reasonable Efforts to collect any amounts available under such Tax benefitinsurance coverage or from such other party alleged to have responsibility therefor prior to making any claim for indemnification under this Article XIV. (b) Notwithstanding anything to the contrary contained herein, no indemnification The Indemnifying Party shall not be provided for liable under this Article VIII XIV for any (i) Losses relating to any matter to the extent that it is included in the calculation of Closing Indebtedness as finally determined pursuant to Section 2.7 or Article IX there is included in respect of any special the Closing Purchase Price Adjustment Schedule as finally determined pursuant to Section 2.7 a specific liability or reserve relating to such matter, (ii) Losses that are for consequential (other than for reasonably foreseeable consequential damages), incidental (other than for reasonably foreseeable incidental damages), indirect or punitive damages (other than punitive damages soughtwith respect to Third Party Claims), awarded (iii) Losses for lost profits which are not reasonably foreseeable, or otherwise imposed in (iv) Losses based upon any Third-Party Claim)multiplier of Meritas’ or Chengdu’s earnings, including, without limitation, earnings before interest, tax, depreciation or amortization or any other valuation metric. (c) Notwithstanding anything The Indemnified Parties shall take, and shall cause their respective Affiliates to take, all reasonable steps in accordance with applicable Law to mitigate their Losses upon and after becoming aware of the contrary hereinexistence of such Losses. (d) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party could have recovered all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the parties agree Indemnified Party shall assign such rights to proceed against such third party as are necessary to permit the Indemnifying Party to attempt to recover from such third party the amount of such indemnification payment; provided that indemnifiable Losses (a) may include indirect and consequential damages no Indemnified Party shall be required to assign such rights if such third party is an employee, client, supplier or tuition payer of the Indemnified Party so long as the Indemnified Party pursues recovery against such damages (i) were reasonably foreseeable third party and (ii) proximately resulted from transfers any proceeds recovered by the events and circumstances giving rise Indemnified Party to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Indemnifying Party.

Appears in 1 contract

Samples: Transaction Agreement (Nord Anglia Education, Inc.)

Calculation of Losses. (a) The amount Any determination of any Loss for which indemnification is provided under this Article VIII or Article IX Losses shall be net of a reasonable estimate of the value of any amounts recovered Tax benefits realizable by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted to take account reason of the actual amount of any Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events facts and circumstances giving rise to the claim for indemnification. The calculation of Losses shall be net of the amount of any insurance proceeds (other than proceeds from the R&W Insurance Policy) recoverable by the Indemnified Party with respect to such Losses. The calculation of Losses shall not include damages arising because of a change after the Closing in Law or accounting policy. To the extent that a claim for indemnification by Buyer hereunder relates to a liability incurred by Seller and there is an accrual on the Closing Balance Sheet in respect of such liability, (b) exclude punitive damages (but include punitive damages soughtthen the determination of Losses in respect of such Claim shall be net of such accrual. In the event that Buyer, awarded Seller, Parent or any other Indemnified Party receives a payment in reimbursement or otherwise imposed in any Third-respect of a Loss from a third party as to which an Indemnifying Party Claim) and (c) exclude Taxes payable by has previously made a payment to an Indemnified Party as a result of any indemnification payment under this Agreement being treated hereunder, the applicable Indemnified Party shall promptly pay over to the applicable Indemnifying Parties their proportionate share (based on the amounts paid by the relevant Taxing Authority as income; provided that Indemnifying Parties) of such amount received from the third party (net of reasonable expenses incurred by the Indemnified Party in no event obtaining such payment). The Indemnified Parties shall CSL be obligated take all reasonable steps to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than mitigate any Losses in respect of indirect and consequential damage arising with a claim that is subject to indemnification hereunder. In the event an Indemnifying Party makes any payment in respect of Losses under this Article 6 to an Indemnified Party, such Indemnifying Party shall have a breach right of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, subrogation against any third party as to which breaches there will be no limit on the Indemnified Party could recover some or all of such Losses so as to permit the Indemnifying Party to recover the amount of indirect its indemnification payment hereunder. Any determination of Losses hereunder shall not include any amount in respect of consequential, indirect, or consequential damages that may be recovered by Buyer)incidental damages, including, without limitation, lost profits or Losses based on multipliers of Seller earnings or profits or otherwise in respect of a diminution value of Seller, all of which are hereby excluded.

Appears in 1 contract

Samples: Asset Purchase Agreement (Core Molding Technologies Inc)

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts actually recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment or otherwise with respect to such Losses. (b) The amount of any Losses for future increases in premiums on other amounts payable which indemnification is provided under this Article IX shall be increased to take account of any net Tax cost incurred by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, resulting from the receipt of indemnity payments hereunder and shall be adjusted reduced to take account of the actual amount of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising resulting from the incurrence or payment of any such LossLoss or that would be realized if the proceeds of such indemnity payment were used to ameliorate the circumstance that gave rise to the Indemnification Claim (in each case, grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). To the extent payment of such Claim does not give rise to a Tax cost currently payable by the Indemnified Party, if payment of the Claim gives rise to a Tax cost subsequently payable by the Indemnified Party, the Indemnifying Party shall pay the Indemnified Party the amount of such Tax cost when, as, and if payable by the Indemnified Party (grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). To the extent such Claim does not give rise to a currently realizable Tax benefit, if the amount with respect to which any Claim is made gives rise to a subsequently realized Tax benefit to the Indemnified Party that made the Claim, such Indemnified Party shall refund to the Indemnifying Party the amount of such Tax benefit when, as and if realized (grossed-up and -down as appropriate in respect of changes in the actual amount of the indemnity payment resulting from adjustments pursuant to this Section 9.7). An Indemnified Party shall use its reasonable efforts to maximize and accelerate Tax benefits and to minimize and defer Tax costs whenever legally permissible. For purposes of this Section 9.7, "Tax cost" means the amount by which the Tax liability of the party (or group of entities including the party) is increased (including by increase in gross income, reduction in deductions by virtue of decreased tax basis or otherwise, reduction of refund or credit to which the party would otherwise be entitled, or otherwise) plus any related interest, penalty, or addition to tax payable to the relevant taxing authority as a result of such Tax cost; and "Tax benefit" means the amount by which the Tax liability of the party (or group of entities including the party) is or could be reduced (including by reduction of gross income, availability of deductions, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received or reduction of interest payable directly related to such Tax benefit. For purposes of this Section 9.7, "Tax benefits" and "Tax costs" shall be computed as if Buyer were a corporation subject to tax under Section 11 of the Code." In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment hereunder or credit; furtherthe incurrence or payment of any indemnified Loss. For purposes of this Section 9.7, a Tax cost is "currently payable" to the extent that such Tax cost relates to the Indemnified Party cannot utilize current taxable period or year or any Tax Return with respect thereto or to any taxable period or year prior to the date of the Claim; and a Tax benefit is "currently realizable" to the extent that such Tax benefit could be realized in the current taxable period or year or in any Tax Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the Claim. The amount of any increase, reduction or payment hereunder shall be adjusted to reflect any final determination with respect to a Loss in the Indemnified Party's liability for Taxes, and payments between the parties to this Agreement to reflect such adjustment shall be made if necessary. For purposes of determining the amount of any Tax period cost or Tax benefit hereunder, the receipt of an indemnity payment shall be treated as an adjustment to the basis of the asset or assets upon which the underlying Claim that gave rise to the indemnity payment was based and payment of an indemnified claim, if required to be capitalized, shall be treated as an adjustment to the basis of the same asset or assets. If the Internal Revenue Service asserts that such Loss or in the Tax period any indemnification payment for such Loss is receivedbasis adjustments were not properly made, the Indemnified Party shall reimburse make such additional adjustments as are necessary to minimize and defer Tax costs and maximize and accelerate Tax benefits, unless precluded from doing so by a final determination with respect to the Indemnified Party or any of its affiliates or unless it is advised, by written opinion of a tax adviser reasonably acceptable to the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement , which opinion shall be made available to the Indemnifying Party within ten Business Days Party, that any further adjustment is inappropriate. Notwithstanding anything herein to the contrary, if the application of this Section 9.7(b) to an indemnity payment owed by Sellers hereunder would increase the amount owed by Sellers, Sellers shall be liable to Buyer for such increased amount only if Buyer could not avoid such increased Tax cost by foregoing its payment of the utilization indemnified Claim and instead providing Sellers the opportunity to pay such Claim directly. For the avoidance of such Tax benefit. (b) Notwithstanding anything doubt, it is understood between the parties that, regardless of against whom a liability is asserted, if it is feasible for the liability to be paid by Sellers, the decision as to whether the liability will be paid directly by Sellers to the contrary contained herein, no indemnification claimant or paid by Sellers to Buyer as an indemnity and then paid by Buyer to the claimant shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages soughtmade by Sellers, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that a Seller informs Buyer of this decision in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of writing before the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)liability is paid.

Appears in 1 contract

Samples: Asset Purchase Agreement (Cedar Fair L P)

Calculation of Losses. (a) The amount For the purposes of any Loss for which the indemnification is provided under provisions set forth in this Article VIII X, any Losses or Article IX amounts otherwise payable hereunder (including amounts relating to Taxes pursuant to Section 10.03) shall be (a) determined on the basis of the net effect after giving effect to any cash payments, setoffs or recoupment (and any costs and expenses incurred in securing such cash payment, setoff or recoupment), in each case, actually received or, in the case of setoffs, retained by the indemnified party (including any amounts recovered by the Indemnified Party or its Affiliates indemnified party under insurance policies after adjustment for future net of the net present value of any reasonably expected increases in premiums on other amounts payable associated with such policies as the proximate result of such recovery to the extent such increased premiums will be paid by the Indemnified Party indemnified party or reimbursement provided by its Affiliates) as a result of any Governmental Entity or other Person with respect event giving rise to a claim for such Loss, indemnification and shall be adjusted (b) reduced to take account of the actual amount of any net Tax benefit or Tax detriment actually realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. In computing Loss and increased by the amount of any Tax detriment resulting from such Tax benefit or Tax detriment, the Indemnified Party indemnification claim (an indemnified party shall be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, have “actually realized” a net Tax benefit to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of that, and at such Loss or in the Tax period any indemnification payment for such Loss is receivedtime as, the Indemnified Party shall reimburse the Indemnifying Party for the amount of Taxes payable by such Tax benefit upon actual utilization indemnified party is reduced below the amount of Taxes that such indemnified party would be required to pay but for the receipt of the indemnity payment or the incurrence or payment of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitLoss). (b) Notwithstanding anything For purposes of the indemnification under Section 10.01(a), Seller shall not be liable to the contrary contained hereinextent of any Losses that are proximately caused as result of (A) any action taken or omitted to be taken by Purchaser or any of its Affiliates or (B) any breach by Purchaser or any of its Affiliates of a representation or warranty or covenant under any Transaction Document (it being understood that, no indemnification in each case, the calculation of Losses shall not be affected or otherwise limited by any such act or omission that results in the discovery, identification or manifestation of the physical or factual conditions from which such Losses arise that does not exacerbate the underlying conditions or factual circumstances from which such Losses arose, provided that the language in this parenthetical shall be provided for disregarded to the extent such language would otherwise reasonably be read to limit the provisions of Section 10.01(b)(iv) of this Agreement ). The calculation of any Losses under this Article VIII X shall take into account the amount by which such matter was reflected in the calculation of the adjustment to the Purchase Price, if any, pursuant to Section 2.02 or in any other Losses that such party or any of its Affiliates were indemnified for pursuant to this Article X or Article IX in respect V of the Restructuring Agreement. The calculation of any special Losses payable to an indemnified party under this Article X relating to, arising out of or punitive damages (resulting from a guarantee, Non-CTS Liability or other than punitive damages sought, awarded similar indirect or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect contingent Liability also shall take into account whether or not payment of such Liability has been demanded and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted is due from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as incomeindemnified party; provided that for the avoidance of doubt the reimbursement of defense costs and other similar Losses relating to, arising out of or resulting from such Liability shall not be delayed in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered any way by Buyer)this sentence.

Appears in 1 contract

Samples: Stock Purchase Agreement (Catalent Pharma Solutions, Inc.)

Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article VIII shall be net of any amounts actually recovered by the Indemnified Person under insurance policies with respect to such Losses (net of any expenses incurred in connection with such recovery). (b) If the amount of any Loss for which indemnification is provided under this Article VIII or Article IX gives rise to a currently realizable Tax Benefit (as defined below) to the Indemnified Person, then the Claim shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount Indemnified Person arising from the receipt of indemnity payments hereunder and (ii) reduced to take account of any net Tax benefit or Tax detriment Benefit realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party Person arising from the incurrence or payment of any such Loss. To the extent such Claim does not give rise to a currently realizable Tax Benefit, if the amount with respect to which any Claim is made gives rise to a subsequently realized Tax Benefit to the Indemnified Person, such Indemnified Person shall refund to the Indemnifying Person the amount of such Tax Benefit (with and including any gross-up payment made pursuant to this Section 8.7 with respect to such Tax Benefit) when, as and if realized. As used herein, a “Tax Benefit” means an amount by which the Tax liability of a Person (or group of Persons) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. In computing the amount of any such Tax benefit cost or Tax detrimentBenefit, the Indemnified Party Person shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment hereunder or credit; furtherthe incurrence or payment of any indemnified Loss. For purposes of this Section 8.7, a Tax Benefit is “currently realizable” to the extent that such Tax Benefit is realized in the Indemnified Party cannot utilize current taxable period or year or in any Tax benefit Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the Claim. The amount of any increase, reduction or payment hereunder shall be adjusted to reflect any final determination with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse Person’s liability for Taxes, and payments between Buyer and the Indemnifying Party for the amount of Sellers to this Agreement to reflect such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement adjustment shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for if necessary. Any indemnity payment under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything shall be treated as an adjustment to the contrary hereinvalue of the asset upon which the underlying Claim was based, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as unless a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer final determination with respect to indirect the Indemnified Person or consequential damages in excess any of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect its Affiliates causes any such payment not to a breach be treated as an adjustment to the value of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)asset for United States federal income tax purposes.

Appears in 1 contract

Samples: Asset Purchase Agreement (Hawkins Inc)

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of income, gain, loss deduction or credit resulting before recognizing any item arising from the Loss giving rise receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to indemnification upon actual recognition this paragraph and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax benefit only after the indemnified party has actually realized such cost or benefit. For purposes of such loss deduction this Agreement, an indemnified party shall be deemed to have "actually realized" a net Tax cost or credit; further, a net Tax benefit to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of that, and at such Loss or in the Tax period any indemnification payment for such Loss is receivedtime as, the Indemnified Party shall reimburse the Indemnifying Party for the amount of Taxes payable by such Tax benefit upon actual utilization indemnified party is increased above or reduced below, as the case may be, the amount of Taxes that such indemnified party would be required to pay but for the receipt of the indemnity payment or the incurrence or payment of such Tax benefit by the Indemnified PartyLoss. Such payment for reimbursement Any offset made against any Receivable based upon or arising from any liability of Seller that Purchaser has not expressly agreed to assume pursuant to Section 1.03(a) shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefita Loss for which indemnification is provided hereunder. (b) Notwithstanding anything Neither the provisions of Section 1.05 or 6.05 relating to adjustments of the contrary contained herein, no indemnification Purchase Price nor the provisions of Article VI relating to Seller's ability to Cure shall be provided for deemed to limit the rights of Purchaser under this Article VIII or or, subject to the provisions hereof, otherwise to seek recovery of Losses from Seller; provided, however, that in calculating the amount of any Loss for which indemnification is provided under this Article IX VIII there shall be taken into account amounts received by Purchaser under such other provisions in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim)such Loss. (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Sappi LTD)

Calculation of Losses. (a) The In calculating amounts payable to an Indemnified Party pursuant to this Article VII, the amount of the indemnified Losses shall be determined without duplication of any other Loss for which an indemnification is provided claim has been made under this Article VIII any other representation, warranty, covenant or Article IX shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, obligation and shall be adjusted to take account of the actual amount computed net of any Tax benefit (whether in the form of reduced Taxes payable, increased rights to Tax refunds or Tax detriment otherwise) realized or realizable by the Indemnified Party or any Affiliate or group of its Affiliates of with respect to such Losses. The Indemnified Party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party Parties shall be deemed use reasonable best efforts to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize realize any Tax benefit with respect to such Losses. If an Indemnified Party realizes a Loss in the Tax period of such Loss or in the Tax period benefit with respect to Losses at any time subsequent to any indemnification payment for provided pursuant to this Article VII (and provided such Loss is received, Tax benefit was not taken into account in determining the amount that the Indemnifying Party was required to pay to the Indemnified Party shall reimburse the Indemnifying Party for hereunder in connection with such Losses by reducing the amount of such Tax benefit upon actual utilization payment), then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized by such Indemnified Party (but in no event in excess of such Tax benefit the amount paid by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of in connection with the utilization of such Tax benefit. (b) indemnification claim giving rise thereto). Notwithstanding anything to the contrary contained hereinin this Agreement, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL any Parent Indemnified Party be obligated entitled to indemnify Buyer indemnification pursuant to this Article VII with respect to indirect any liability that is accrued (and then only to the extent thereof) on the Final Statement or consequential damages any amount that was the subject of a dispute submitted to, and resolved by, the Accounting Firm pursuant to Section 1.5 or that was resolved by the Parties pursuant to Section 1.5, or that was otherwise taken into account in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach the calculation of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)Final Merger Consideration.

Appears in 1 contract

Samples: Merger Agreement (Andina Acquisition Corp. II)

Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under this Article X shall be net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery). (b) If, notwithstanding the treatment required by Section 10.8, the amount of any Loss for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by X gives rise to a currently realizable Tax benefit (as defined below) to the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by making the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such LossIndemnification Claim, and then the Indemnification Claim shall be adjusted (i) increased to take account of any net Tax cost incurred by the actual amount indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party indemnified party arising from the incurrence or payment of any such Loss. To the extent such Indemnification Claim does not give rise to a currently realizable Tax benefit, if, notwithstanding the treatment required by Section 10.8, the amount with respect to which any Indemnification Claim is made gives rise to a subsequently realized Tax benefit to the indemnified party that made the Indemnification Claim, such indemnified party shall refund to the indemnifying party the amount of such Tax benefit (with and including any gross-up payment made pursuant to this Section 10.7 with respect to such Tax benefit) when, as and if realized (it being understood that such indemnified party shall use its reasonable efforts to realize such Tax benefit). For purposes of this Section 10.7, a “Tax benefit” means an amount by which the Tax liability of the party (or group of corporations including the party) is actually reduced (including by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Tax Authority. In computing the amount of any such Tax benefit cost or Tax detrimentbenefit, the Indemnified Party indemnified party shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction any indemnity payment hereunder or credit; furtherthe incurrence or payment of any indemnified Loss. For purposes of this Section 10.7, a Tax benefit is “currently realizable” to the extent that such Tax benefit can be realized in the Indemnified Party cannot utilize current taxable period or year or in any Tax benefit Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the Indemnification Claim. The amount of any increase, reduction or payment hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870-AD or successor form) with respect to a Loss in the Tax period of indemnified party’s liability for Taxes, and payments between the parties to this Agreement to reflect such Loss or in the Tax period any indemnification payment for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement adjustment shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefit. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for if necessary. Any indemnity payment under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything X shall be treated as an adjustment to the contrary hereinvalue of the asset upon which the underlying Indemnification Claim was based, unless a final determination (which shall include the parties agree that indemnifiable Losses (aexecution of a Form 870-AD or successor form) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect the indemnified party or consequential damages in excess any of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect its Affiliates causes any such payment not to a breach be treated as an adjustment to the value of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)asset for United States federal income tax purposes.

Appears in 1 contract

Samples: Asset Purchase Agreement (Global Crossing LTD)

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under this Article VIII IX or Article IX X shall be net of any amounts recovered by the Indemnified Party or its Affiliates under insurance policies after adjustment for future increases in premiums on other amounts payable by the Indemnified Party or reimbursement provided by any Governmental Entity or other Person with respect to such Loss, and shall be adjusted to take account of the actual amount of any (i) Tax benefit or Tax detriment benefits actually realized by the Indemnified Party or any Affiliate or group indemnified party as a result of Affiliates of such Indemnified Party arising from the incurrence or payment of any such Losses in the year of the Loss or the following three (3) taxable years (“Tax Benefit”), and (ii) amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Losses (in each case net of any reasonable and documented deductible or copayment, the costs of filing a claim, arbitration costs, and all other documented out-of-pocket expenses and Taxes incurred in connection with such recovery). If such Tax Benefit for the year of the Loss or the following three (3) taxable years is determined after the applicable indemnity payment is made pursuant to this Section 9.6, the indemnified party shall repay to the indemnifying party, promptly after such determination, any amount that the indemnifying party would not have had to pay pursuant to this Section 9.6 had such determination been made at the time of such payment (provided that in no event shall the indemnifying party receive any payment in excess of the amount actually paid to the indemnified party in respect of such Loss). In the event that an insurance recovery is received by any indemnified party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund shall be made promptly to the indemnifying party that made or provided such indemnification payment to such indemnified party equal to the excess of (I) the amount previously received by such indemnified party hereunder, plus the amount of the insurance payments or other recoveries from such insurance recovery actually received by such indemnified party (net of any expenses reasonably incurred by the indemnified party in collecting such amounts, including any deductible or copayment amounts, reasonable and documented attorney’s fees and increase in insurance premiums), over (B) the amount of Losses with respect to such claim which such indemnified party incurred, regardless of whether such indemnified party has become entitled to receive an indemnity payment under this Section 9 (provided that in no event shall the indemnifying party receive a refund in excess of the amount actually paid to the indemnified party in respect of such Loss). The amount of any Losses for which indemnification is provided under this Article IX or Article X shall be increased to take into account any additional Tax cost incurred by the indemnitee in the year of the Loss or the following three (3) taxable years arising from the receipt of indemnification payments hereunder (“Tax Cost”). In computing the amount of any such Tax benefit Cost or Tax detrimentBenefit, the Indemnified Party indemnitee shall be deemed to recognize and receive all other items of loss income, gain, loss, deduction or credit resulting before recognizing any item arising from the Loss giving rise to indemnification upon actual recognition receipt of such loss deduction or credit; further, to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment for such Loss is receivedhereunder or the incurrence or payment of any indemnified Loss. For the avoidance of doubt, nothing in the Indemnified Party foregoing shall reimburse the Indemnifying Party for the amount of such provide Seller with any access or right to review Purchaser’s or its Subsidiaries Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitReturns. (b) Notwithstanding anything to the contrary contained hereinelsewhere in this Agreement, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages soughtParty shall, awarded or otherwise imposed in any Third-Party Claim)event, be liable to any other Person for any Excluded Damages hereunder. (c) Notwithstanding anything to the contrary hereinelsewhere in this Agreement, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages with respect to determining whether (i) were reasonably foreseeable and a breach of any of the Seller Representations has occurred for purposes of this Article IX or Article X, or (ii) proximately resulted from the events and circumstances giving rise to the Lossesamount of Losses incurred or suffered, (b) exclude punitive damages (but include punitive damages soughtfor such purposes, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by such breach, any Material Adverse Effect or materiality qualification limiting the relevant Taxing Authority as income; provided that in no event scope of such representations or warranties shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer)disregarded.

Appears in 1 contract

Samples: Asset Purchase Agreement (Costa Inc)

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under this Article VIII or Article IX shall be computed net of any amounts recovered insurance proceeds received by the Indemnified Party in connection with such Losses. If the amount with respect to which any claim is made under this Article IX (an “Indemnity Claim”) gives rise to the party making the claim an actual Tax Benefit (as defined below), the indemnity payment shall be reduced by the amount of the Tax Benefit available to the party making the claim. To the extent such Indemnity Claim does not give rise to an actual Tax Benefit, if the amount with respect to which any Indemnity Claim is made gives rise to a Tax Benefit that is realized within five years of the close of the taxable year that includes the year of the Loss subject to this Section 9.05 to the party that made the claim, such party shall refund to the Indemnifying Party the amount of such Tax Benefit when, as and if realized. For the purposes of this Agreement, any subsequently realized Tax Benefit shall be treated as though it were a reduction in the amount of the initial Indemnity Claim, and the liabilities of the parties shall be redetermined as though both occurred at or its Affiliates under insurance policies prior to the time of the indemnity payment. For purposes of this Section 9.05, a “Tax Benefit” means an amount by which the Income Tax liability of the party (or group of corporations including the party) is reduced (including, without limitation, by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Taxing Authority. Where a party has other losses, deductions, credits or items available to it, the determination of any Tax Benefit shall be calculated by comparing the Income Tax liability of the Indemnified Party, computed without regard to any losses, deductions, credits or items relating to the Indemnity Claim, to the Income Tax liability of the Indemnified Party, computed after adjustment for future increases in premiums on other amounts payable by taking into account any losses, deductions, credits or items relating to the Indemnity Claim. In the event that there should be a determination disallowing the Tax Benefit, the Indemnifying Party shall be liable to refund to the Indemnified Party the amount of any related reduction previously allowed or reimbursement provided by payments previously made to the Indemnifying Party pursuant to this Section 9.05. The amount of the refunded reduction or payment shall be deemed a payment under this Section 9.05 and thus shall be paid subject to any Governmental Entity applicable reductions under this Section 9.05. Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination (which shall include the execution of a Form 870-AD or other Person successor form) with respect to such Loss, and shall be adjusted to take account of the actual amount of any Tax benefit or Tax detriment realized by the Indemnified Party or any Affiliate or group of Affiliates of such Indemnified Party arising from the incurrence or payment of its affiliates causes any such Loss. In computing the amount of any such Tax benefit or Tax detriment, the Indemnified Party shall payment not to be deemed to recognize and receive items of loss deduction or credit resulting from the Loss giving rise to indemnification upon actual recognition of such loss deduction or credit; further, treated as an adjustment to the extent that the Indemnified Party cannot utilize any Tax benefit with respect to a Loss in the Tax period of such Loss or in the Tax period any indemnification payment Purchase Price for such Loss is received, the Indemnified Party shall reimburse the Indemnifying Party for the amount of such Tax benefit upon actual utilization of such Tax benefit by the Indemnified Party. Such payment for reimbursement shall be made to the Indemnifying Party within ten Business Days of the utilization of such Tax benefitUnited States Federal income purposes. (b) Notwithstanding anything to the contrary contained herein, no indemnification shall be provided for under this Article VIII or Article IX in respect of any special or punitive damages (other than punitive damages sought, awarded or otherwise imposed in any Third-Party Claim). (c) Notwithstanding anything to the contrary herein, the parties agree that indemnifiable Losses (a) may include indirect and consequential damages so long as such damages (i) were reasonably foreseeable and (ii) proximately resulted from the events and circumstances giving rise to the Losses, (b) exclude punitive damages (but include punitive damages sought, awarded or otherwise imposed in any Third-Party Claim) and (c) exclude Taxes payable by an Indemnified Party as a result of any indemnification payment under this Agreement being treated by the relevant Taxing Authority as income; provided that in no event shall CSL be obligated to indemnify Buyer with respect to indirect or consequential damages in excess of U.S.$25,000,000 (other than in respect of indirect and consequential damage arising with respect to a breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.18 and 3.35, as to which breaches there will be no limit on the amount of indirect or consequential damages that may be recovered by Buyer).

Appears in 1 contract

Samples: Stock Purchase Agreement (WRC Media Inc)