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Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. In calculating any amount due hereunder in respect of Losses, Losses shall be reduced by (a) any amounts recovered by the Indemnified Party under applicable insurance policies, under any indemnification or similar agreements, or from any other Person alleged to be responsible for any Losses or other rights of recovery with respect to such Losses, net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and (b) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Indemnified Party shall use commercially reasonable efforts to seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policy, agreement or right, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expense.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Lincoln National Corp)

Calculation of Losses. In calculating any amount due hereunder in respect of Losses, Losses shall be reduced by (a) For purposes of Section 5.2 and Section 5.3, the existence of an inaccuracy or breach of a representation or warranty and the amount of Losses arising therefrom shall be determined without giving effect to any qualification of materiality, including by use of “in all material respects”, “Material Adverse Effect”, or words of similar effect (“Materiality Qualifiers”). Notwithstanding the foregoing, (x) Materiality Qualifiers in Section 2.11(c) shall not be so disregarded, and (y) the foregoing shall not have any impact on the use of the word “material” as part of the name of a defined term (e.g., Material Contract). (b) The amount of any Losses for which indemnification, compensation or reimbursement is provided under this Article V shall be calculated net of any amounts actually recovered by under insurance policies (except, solely with respect to determining Losses that any Buyer Party seeks to recover from the Indemnified Party Indemnity Escrow Amount for amounts recoverable or for which there is a right of recovery under applicable insurance policies, under any indemnification or similar agreements, or from any other Person alleged to be responsible for any Losses the R&W Insurance Policy) or other rights of recovery amounts recoverable from third parties with respect to such LossesLosses (“Insurance Proceeds”), and any net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by Tax benefits arising from the Indemnified Party in obtaining such recovery and (b) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized indemnifiable Losses by the Indemnified Party (or its Affiliates; provided), however, that such reimbursement shall be required only to the extent that such Tax benefitbenefits are realized, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members respect of the Company Group are included. In the event Taxable period of such Loss, any prior Taxable period, or any of the occurrence of any Lossesthree succeeding Taxable years, an by the Indemnified Party (or its Affiliates). Each Indemnified Party shall use commercially reasonable efforts to seek recovery make claims under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery providing coverage with respect to Losses suffered by such Losses; provided, that, if Indemnified Party. In the event that any Insurance Proceeds are received by an Indemnified Party is denied recovery under any third party insurance policyafter payment for the related indemnification claim has been made pursuant to this Section 5.6(b), then the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required pay to pursue such recovery only if the Indemnifying Party agrees an amount equal to bear the amount of the reduction in Losses that would have been applied pursuant to the first sentence of this Section 5.6(b) had such costs and expenses, Insurance Proceeds been received at the time such indemnification claim was made. (iic) an Indemnified Party shall be required to commence or defend a Proceeding The Buyer Parties may not recover under Section 5.2(a) for any item of Losses in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party event and to the extent permitted under Buyer previously received recovery for such item as a result of the applicable policy, agreement or right, the Indemnified Purchase Price Adjustment. (d) Amounts paid by any Party as indemnification payments shall assign the rights to recovery under such policy, agreement or right be treated as adjustments to the Indemnifying PartyPurchase Price, in which case including, for the Indemnifying Party may pursue recovery under such policyavoidance of doubt, agreement or right at its cost and expensefor Tax purposes, unless otherwise required by Law.

Appears in 1 contract

Samples: Asset Purchase Agreement (Gorman Rupp Co)

Calculation of Losses. In calculating 10.5.1 Notwithstanding anything in this Agreement to the contrary, the existence of any breach of any representation or warranty set forth in this Agreement and the amount due hereunder in respect of Losses, Losses related thereto shall be reduced by determined without regard to any qualifications therein referencing terms “material,” “materially,” “Material Adverse Effect” or words of similar import set forth therein. 10.5.2 The amount which the Indemnifying Party is or may be required to pay to any Indemnified Party pursuant to this Article 10 shall be determined net of any refund received (aor credit received in lieu of such a refund) of Taxes paid or any amounts recovered net reduction in the amount of Taxes that otherwise would have been paid by the Indemnified Party under applicable insurance policiesas a result of the relevant Loss in the taxable year such Loss is incurred, under but, in the case of non-Income Taxes, only to the extent such refund (or credit in lieu of such refund or reduction in Taxes) is received or, in the case of a reduction in taxes, occurs in the taxable year such Loss is incurred. For purposes of the preceding sentence, in computing refunds (or credits in lieu of refunds) of Taxes paid or net reduction in the amount of Taxes that otherwise would have been paid, such items shall be offset by any indemnification Tax detriments to the Indemnifying Party resulting from, among other things, receipt of any such refunds (or similar agreements, credits in lieu of refunds) of Taxes paid or from any other Person alleged to be responsible for net reduction in the amount of Taxes that otherwise would have been paid. 10.5.3 The amount of any Losses subject to indemnification hereunder shall be calculated net of any amounts actually recovered under or pursuant to any insurance policy (other than the R&W Insurance Policy), indemnity, reimbursement arrangement, contribution agreement or contract pursuant to or under which such Indemnified Party is a party or has rights (but in no event shall the amount of such Losses exceed the Escrow Amount). If the Indemnified Party receives such a recovery or payment with respect to a Loss after payment is made pursuant to this Article 10 in connection with any such LossesLoss, net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and shall pay the lesser of (bi) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment amount of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment and (ii) the amount paid by the Indemnifying Party has been made, then such Indemnified Party (whether through withdrawals or its Affiliates shall promptly reimburse releases from the Indemnifying Party for any payment made up amounts held pursuant to the amount received Escrow Agreement or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both otherwise) within thirty (i30) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an days after receipt thereof. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to seek recovery take all measures as required under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery applicable Legal Requirements to mitigate the Losses that are indemnifiable hereunder. 10.5.5 Notwithstanding anything to the contrary in this Agreement, the Seller shall have no liability under this Article 10 with respect to such Losses; provided, that, if an any (i) Taxes of the Buyer Indemnified Parties with respect to a taxable period (or portion thereof) beginning after the Closing Date (other than as a result of any inaccuracy in or breach of the representation set forth in the first sentence of Section 5.16.4 or in Section 5.16.9(iv) or 5.16.10) or (ii) Taxes (x) resulting from any transaction taken at the direction of the Buyer or any Affiliate thereof on the Closing Date following the Closing outside of the ordinary course of business or (y) in connection with the Debt Financing (including any transfer of Debt Financing proceeds or assumption (or guarantee) of obligations related to the Debt Financing). 10.5.6 No Indemnified Party is denied recovery under shall be entitled to any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under (a) the applicable policyLosses were taken into account in determining the Adjusted Closing Consideration pursuant to Article 3 or (b) the applicable Losses have otherwise previously been satisfied or paid, agreement or right, the Indemnified Party shall assign the rights including pursuant to recovery under such policy, agreement or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseanother provision of this Agreement.

Appears in 1 contract

Samples: Equity Purchase Agreement (BrightSphere Investment Group Inc.)

Calculation of Losses. In 10.5.1 With respect to any representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 with respect to such breach or inaccuracy and (ii) determining whether there has been a breach or inaccuracy of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contrary, the amount of any amount due hereunder in respect of Losses, Losses incurred or suffered by the Indemnified Party shall be reduced by calculated after giving effect to (a) any net insurance proceeds received by the Indemnified Party and any of its Affiliates with respect to such Losses (after taking into account any increases in premiums) and (b) any net amounts recovered by the Indemnified Party under applicable insurance policies, under and any indemnification or similar agreements, or of its Affiliates from any other Person alleged to be responsible for any Losses or other rights of recovery with respect to such Losses, net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by Third Party (after taking into account the Indemnified Party in obtaining such recovery and (b) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment costs of any such Lossesrecovery). If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Each Indemnified Party shall use commercially reasonable efforts to seek recovery obtain such proceeds or recoveries either prior or subsequent to seeking indemnification under this Agreement. If any and all available third party insurance policies such proceeds or third party indemnification obligations recoveries are received by an Indemnified Party or other rights any of recovery its Affiliates with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by Losses after the Indemnified Party (including all fees and expenses has received the benefit of counsel) in connection any indemnification hereunder with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policy, agreement or rightrespect thereto, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right pay to the Indemnifying Party the amount of such proceeds or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment to an Indemnified Party in which case respect of any Losses under this Article 10, the Indemnifying Party may pursue recovery shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the Losses to which such payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to mitigate to the extent required by Applicable Law any Loss for which such Indemnified Party seeks indemnification under such policy, agreement or right at its cost and expensethis Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Aclaris Therapeutics, Inc.)

Calculation of Losses. In calculating any amount due hereunder in respect of Losses, Losses shall be reduced by (a) The amount of any Losses for which indemnification is provided under this Article X shall be net of (i) any amounts actually recovered by the Indemnified Party indemnified party under applicable insurance policies, under any indemnification or similar agreements, or from any other Person alleged to be responsible for any Losses policies or other rights collateral sources (such as contractual indemnities of recovery any Person that are outside of this Agreement) or otherwise with respect to such Losses, Losses (net of any deductible Tax or any other reasonable and necessary out-of-pocket expense expenses incurred by the Indemnified Party in obtaining connection with such recovery recovery) and (bii) any Tax benefit, saving or reduction in Taxes benefits actually realized by the Indemnified Party indemnified party by reason of the indemnity payment or the circumstances giving rise thereto. Purchaser shall use its Affiliatescommercially reasonable efforts to recover under insurance policies or other collateral sources for any Losses prior to seeking indemnification under this Agreement. (b) Notwithstanding anything to the contrary elsewhere in this Agreement, no party shall, in any event, be liable to any other Person for any consequential, incidental, indirect, special or punitive damages of such other Person, including loss of future revenue, income or profits or loss of business reputation or opportunity relating to the breach or alleged breach hereof (provided that such limitation with respect to profits shall not limit Seller's right to recover contract damages in connection with Purchaser's failure to close in violation of this Agreement), except to the extent any consequential, incidental, indirect, special or punitive damages, including loss of future revenue, income or profits or loss of business reputation or opportunity, constitute Losses paid to a third party in a third party claim; provided that nothing in this paragraph is intended or shall be construed to prevent any party from recovering damages attributable to the accrual, incurrence or payment diminution of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only value (including lost profits to the extent that such Tax benefit, saving or reduction a court applying New York law would take lost profits into account in Taxes results in a cash Tax savings both (i) to determining the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence amount of any Lossesdiminution of value). (c) In valuing a Loss, an Indemnified Party no adjustment shall use commercially reasonable efforts to seek recovery under be made as a result of any and all available third party insurance policies multiple, increase factor, or third party indemnification obligations any premium over fair market, book, or historical value that may have been paid by Purchaser for the Shares, whether or not such multiple, increase factor or other rights of recovery with respect to such Losses; providedpremium had been used by Purchaser at the time of, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recoverywith, such Indemnified Party shall be required to pursue such recovery only if calculating its bid for the Indemnifying Party agrees to bear such costs and expensesShares, (ii) an Indemnified Party shall be required to commence its proposed purchase price for the Shares or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear final purchase price for the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policy, agreement or right, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseShares.

Appears in 1 contract

Samples: Stock Purchase Agreement (CastlePoint Holdings, Ltd.)

Calculation of Losses. In calculating any amount due hereunder in respect Subject to the other provisions of this Article 11: (a) Each indemnified party shall use commercially reasonable efforts to mitigate Losses, including seeking recovery under insurance policies and from Third Parties. Any insurance proceeds or recoveries from Third Parties received by any indemnified party with respect to any Losses shall reduce, on a dollar-for-dollar basis, the amount payable to such indemnified party under the indemnification provisions of this Article 11. (b) All indemnification or reimbursement payments required pursuant to this Article 11 shall be reduced by (a) to take account of any amounts recovered net Tax benefit to the indemnified party, whether or not claimed by the Indemnified Party under applicable insurance policiesindemnified party, under any indemnification or similar agreements, or from any other Person alleged to be responsible for any Losses or other rights of recovery arising in connection with respect to such Losses, net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and (b) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment of any Loss (including the net present value of any Tax benefit arising in subsequent Taxable years, calculated using a discount rate of 8% and assuming the highest applicable combined federal, state and local statutory rate of Tax for the indemnified party in effect for the Tax year in which such Losses. If indemnification or reimbursement payment is made). (c) If, at any time on or after the Closing Date, an Indemnified Party indemnified party receives recoveries under insurance policies or its Affiliates receives from Third Parties relating to a Loss, or actually realizesany refund, as applicablerebate, any such recovery return, credit or Tax benefitother similar payment relating to Taxes, saving or reduction in Taxes after for which an indemnifying party made an indemnification payment under this Article 11, the indemnified party shall promptly notify the indemnifying parties in writing of such receipt and shall remit the full amount of such payment (including any interest thereon received by the Indemnifying Party has been madeindemnified party, then but less any Tax payable on the indemnified party’s receipt of such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (ipayment) to the Company Group on a stand-alone basis and indemnifying parties. (iid) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Indemnified Party shall use commercially reasonable efforts to seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement Sellers shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if make indemnification payments pursuant to this Article 11 for any Loss taken into account in the Indemnifying Party agrees to bear such costs calculation of, and expensesactually paid pursuant to, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policy, agreement or right, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseWorking Capital Adjustment.

Appears in 1 contract

Samples: Master Acquisition Agreement (Chardan 2008 China Acquisition Corp.)

Calculation of Losses. In calculating any amount due hereunder in respect of Losses, Losses shall be reduced by (a) The amount of any Losses for which indemnification is provided under this Article X shall be net of any amounts recovered actually received by the such Indemnified Party under applicable insurance policies, under any indemnification policies or similar agreements, or from any other Person alleged to be responsible for any Losses or other rights of recovery with respect to such Losses, net Losses and shall be reduced to take account of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and (b) any net Tax benefit, saving or reduction in Taxes benefit actually realized by the Indemnified Party or its Affiliates, attributable to arising from the accrual, incurrence or payment of any such Losses. If an In computing the amount of any such Tax benefit actually realized, the Indemnified Party shall be deemed to recognize any item of loss, deduction or its Affiliates receives credit as a result of such indemnified Loss after the recognition of any other items of loss, deduction or actually realizes, as applicable, credit. In the event the Ticketmaster Indemnified Parties receive any such insurance proceeds, the amount of such recovery shall be applied first, to reimburse the Ticketmaster Indemnified Parties for their out-of-pocket expenses (including attorney’s fees and expenses) expended in pursuing such recovery, second, to refund any payments made by the Stockholder Indemnifying Parties pursuant to Article X which would not have been so paid had such recovery been obtained prior to such payment, and third, to the Ticketmaster Indemnified Parties. Notwithstanding the foregoing, the terms of this Section 10.6(a) shall in no event obligate Ticketmaster, the Surviving Corporation, the Subsidiaries any of their Affiliates to maintain any insurance policy or Tax benefitspecific level of coverage under any policy, saving or reduction in Taxes after an indemnification payment by permit the Indemnifying Party has been madeto withhold any or all Losses until a claim is resolved. (b) Each party shall use commercially reasonable efforts to take all appropriate steps to mitigate any of its Losses (including, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received extent consistent with sound business judgment, incurring costs only to the minimum extent necessary to remedy the breach which gives rise to the Losses) upon becoming aware of any event which would reasonably be expected to, or actually realized by the Indemnified Party or its Affiliatesdoes, give rise thereto; provided, however, that such reimbursement in no event shall the terms of this Section 10.6(b) in any way obligate Ticketmaster, the Company or any of the Company’s Subsidiaries to take any steps that would, or that could reasonably be required only expected to, adversely impact in any way the operation or financial performance of Ticketmaster, the Surviving Corporation, the Subsidiaries or any of their respective Affiliates. (c) Ticketmaster, Merger Sub, the Company, the Stockholders’ Representative and the Material Stockholders agree to treat any indemnification payments received pursuant to this Agreement for all Tax purposes as an adjustment to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Indemnified Party shall use commercially reasonable efforts to seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policy, agreement or right, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseMerger Consideration.

Appears in 1 contract

Samples: Merger Agreement (Ticketmaster)

Calculation of Losses. In calculating For purposes of determining the extent of and limitations on indemnification under this Section 8.4, the amount of any amount due Losses that may be subject to indemnification hereunder in respect will be determined net of Losses, Losses shall be reduced by (ai) the sum of any amounts recovered actually received by the Indemnified Party under applicable insurance policies, under any indemnification or similar agreements, or from any other Person alleged to be responsible for any Losses or other rights of recovery policies with respect to such Loss (it being understood that neither the Buyer nor the Company shall be under any obligation to file any insurance claim relating to such Losses; provided, net however, that if the Company has occurrence based insurance coverage in place with respect to pre-Closing periods the premium for which was paid by Seller or the Company, and the Company or Buyer does not wish to file any such insurance claim with respect to such policy, Buyer will promptly notify Seller of such determination and shall, to the extent consistent with the terms of the underlying policies, assign to Seller any rights of the Company to pursue any claim under such policy relating to such Losses; provided, further that Seller shall have no right to access the insurance coverage of the Company or the Buyer with respect to any insurance coverage (occurrence based or claims-made) that is in effect on or after the Closing), and (ii) the amount of any deductible Tax benefit (after first taking into account all other items of income, gain, loss, deduction or any other reasonable and necessary out-of-pocket expense incurred by the credit of such Indemnified Party in obtaining such recovery and (bor group) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party (or its Affiliatesany consolidated, combined or unitary group of which the Indemnified Party is also a member) attributable to the accrual, incurrence accrual or payment of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only Loss to the extent that such Loss is deductible; such Tax benefit, saving or reduction in Taxes results in a cash benefit shall be based on the post-Closing Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members position of the Company Group are includedand shall be certified by a senior manager or partner of an accounting firm representing the Company. In the event of the occurrence of that any Losses, an Indemnified Party shall use commercially reasonable efforts to seek recovery Tax benefit that has actually reduced Losses under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to such Losses; provided, that, if an Indemnified Party this Section 8.4(b) is denied recovery under any third party insurance policydisallowed, the rights of such Indemnified Party to seek indemnification under this Agreement Seller shall not be affected; provided, further, that promptly (i) if repay to the Buyer an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required amount equal to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, sum of (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding Tax benefit disallowed and (iii) if elected the amount of interest actually paid by the Indemnifying Party and Buyer to a Taxing Authority on account of the disallowance of such Tax benefit. Buyer will not be entitled to any indemnification for any Loss to the extent permitted under that the applicable policy, agreement Buyer has recovered such Loss (or right, has otherwise received an equivalent economic benefit) through the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying Party, Net Working Capital purchase price adjustment provided for in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseSection 1.4 above.

Appears in 1 contract

Samples: Membership Interest Purchase and Sale Agreement (Global Power Equipment Group Inc.)

Calculation of Losses. In calculating any amount due hereunder in respect All Losses under this Article IX will be determined net of Losses, Losses shall be reduced by (a) any amounts Third Party Awards actually recovered by the Indemnified Party under applicable insurance policies, under any indemnification Seller Indemnitee or similar agreements, or from any other Person alleged to be responsible for any Losses or other rights of recovery Buyer Indemnitee with respect to such Lossesthe specific Loss claimed, net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and (b) any Tax benefitrefund, saving Tax credit or reduction in Taxes actually Tax resulting or arising from such Losses, in each case, to the extent, and solely to the extent, realized by the Indemnified Party applicable Buyer Indemnitee or its AffiliatesSellers’ Indemnitee (it being agreed that such Tax refund, attributable credit or reduction will be deemed realized for purposes of this Section 9.09 at the time that it is reflected on a Tax Return of the applicable Buyer Indemnitee or Sellers’ Indemnitee) to the accrualextent not then disputed by the applicable taxing authority or Governmental Authority, incurrence (c) any amount that specifically pertains to such Loss and is taken into account and reflected in the calculation of Closing Working Capital as shown on the Final Closing Statement. Each Buyer Indemnitee or payment of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizesSeller Indemnitee, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Indemnified Party shall use commercially reasonable efforts to seek full recovery under any and all available third party applicable insurance policies or third party that may cover a Loss to the same extent as they would if such Loss were not subject to indemnification obligations or other rights recovery hereunder. In the event that a Tax refund, Tax credit or reduction in Tax is realized as contemplated by the foregoing clause (b) of recovery this Section 9.09, a Third Party Award is actually recovered by the applicable Seller Indemnitee or Buyer Indemnitee with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking a specific Loss for which any such recoveryBuyer Indemnitee or Seller Indemnitee has been fully indemnified or otherwise recovered fully hereunder, such Indemnified Party shall be required then a refund equal to pursue such the aggregate net amount of the Tax refund, Tax credit or reduction in Tax or recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket after reduction for all costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with obtaining such Proceeding and (iiirecovery) if elected by the Indemnifying Party and shall be made promptly to the extent permitted under applicable Buyer Indemnitee or Seller Indemnitee providing the applicable policy, agreement indemnity or right, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseother recovery.

Appears in 1 contract

Samples: Share Purchase Agreement (Us Concrete Inc)

Calculation of Losses. In calculating any amount due hereunder in respect of Losses, Losses shall be reduced by (a) The amount of any Loss for which indemnification is provided under Article VIII or this Article IX shall be net of any amounts actually recovered by the Indemnified Party under applicable any insurance policies, under any indemnification or similar agreements, or from any other Person alleged to be responsible for any Losses or other rights of recovery policy with respect to such Losses, Loss (net of any deductible or any other reasonable and necessary out-of-pocket expense related deductible, expenses incurred by the Indemnified Party in obtaining such recovery and (b) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any securing such recovery or Tax benefitretroactive or other premium adjustments directly attributable thereto) or any indemnity, saving contribution or reduction in Taxes after an indemnification other similar payment by the Indemnifying Party has been made, then with respect to such Loss. The Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Indemnified Party Parties shall use its commercially reasonable efforts to seek recovery under any and all available third party such insurance policies recoveries or third party indemnification obligations indemnity, contribution or other rights similar payments, but seeking such recovery shall not be a condition to indemnification under this Agreement. (b) Purchaser and Sellers agree to report each indemnification payment made in respect of recovery any Losses as an adjustment to the Purchase Price for U.S. federal income Tax purposes unless the Indemnified Party determines in good faith that such reporting position is incorrect. (c) No Purchaser Indemnitee or Seller Indemnitee, as the case may be, shall be entitled to recover any Losses relating to any matter arising under one provision of this Agreement to the extent that the Purchaser Indemnitees or Seller Indemnitees, respectively, have already recovered Losses with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any matter pursuant to third party insurance policypolicies, or any indemnity, contribution or other similar agreements, as provided in Section 9.03(a) and/or other provisions of this Agreement. (d) For purposes of Article VIII or this Article IX, any qualifications in the rights representations, warranties and covenants with respect to a Company Material Adverse Effect, materiality, material or similar terms (except to the extent such terms are used to qualify descriptions or lists of assets and liabilities and other items required to be disclosed on the Company Disclosure Schedule) shall be disregarded and will not have any effect with respect to the determination of whether or not a breach has, in fact, occurred, or the calculation of the amount of any Losses attributable to a breach of any representation, warranty or covenant set forth in this Agreement (including the Company Disclosure Schedule). (e) The amount of any Loss for which indemnification is provided under Article VIII or this Article IX shall be reduced by an amount equal to any Tax benefit actually realized as a result of such Loss in the taxable year in which such Loss occurs by the Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that Party. (if) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Each Indemnified Party shall take, and cause its Affiliates to take, reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be required reasonably expected to, or does, give rise thereto, including incurring costs only as commercially reasonable to pursue remedy the breach that gives rise to such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policy, agreement or right, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseLoss.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Cheesecake Factory Inc)

Calculation of Losses. In calculating any amount due All Losses hereunder in respect will be determined net of Losses, Losses shall be reduced by (a) any amounts recovered by the Indemnified Third-Party under applicable insurance policies, under any indemnification or similar agreements, or from any other Person alleged to be responsible for any Losses or other rights of recovery with respect to such Losses, net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and Awards (b) any Tax benefitrefund, saving Tax credit or reduction in Taxes actually Tax resulting or arising from such Losses, in each case, to the extent realized by the Indemnified Party applicable Buyer Indemnitee or its Affiliates, attributable to the accrual, incurrence or payment of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent Sellers’ Indemnitee (it being agreed that such Tax benefitrefund, saving credit or reduction in Taxes results in a cash Tax savings both (i) to will be deemed realized for purposes of this Section 9.05 at the Company Group time that it is reflected on a stand-alone basis Tax Return of the applicable Buyer Indemnitee or Sellers’ Indemnitee); and (iic) any amount that specifically pertains to such Loss and is taken into account in the calculation of Closing Working Capital. With respect to any affiliated, consolidated, combined, unitary indemnification claim with respect to Losses some portion or similar group in all of which the members of applicable Buyer Indemnitee or Sellers’ Indemnitee may reasonably be entitled to recover pursuant to a Third-Party Award, such Buyer Indemnitee or Sellers’ Indemnitee, as the Company Group are included. In the event of the occurrence of any Lossescase may be, an Indemnified Party shall will use commercially reasonable efforts to seek recovery under any pursue and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to recover such LossesThird-Party Award; provided, that, if an Indemnified Party is denied recovery under that nothing herein shall require any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; providedseek, furtherobtain or maintain any policy of insurance. If a Tax refund, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs Tax credit or expenses reduction in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred Tax is realized as contemplated by the Indemnified foregoing clause (b) of this Section 9.05, and/or if a Third-Party (including all fees and expenses of counsel) Award is received, in connection with such Proceeding and (iii) if elected either case, by the Indemnifying Party and applicable Buyer Indemnitee or Sellers’ Indemnitee after the indemnifying party has made a payment in respect of any Losses, then such Buyer Indemnitee or Sellers’ Indemnitee, as the case may be, will pay an amount to the extent permitted under indemnifying party equal to such Tax refund, Tax credit or reduction in Tax and/or Third-Party Award, not to exceed the applicable policy, agreement or right, amount of the Indemnified Party shall assign the rights related Losses that have been indemnified pursuant to recovery under such policy, agreement or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expensethis Article IX.

Appears in 1 contract

Samples: Equity Purchase Agreement (Us Concrete Inc)

Calculation of Losses. In calculating Notwithstanding anything to the contrary herein: (a) no Purchaser Indemnitee or Seller Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Losses has been included in the final determination of the Final Adjustment Amount; (b) each Indemnified Party shall, and shall cause their respective Affiliates to, take reasonably prudent steps consistent with customary business practices to mitigate any Losses arising out of or relating to this Agreement or the transactions contemplated hereby after becoming actually aware of the incurrence of such Losses; (c) the amount due hereunder in respect of Losses, Losses any Loss for which an Indemnified Party claims indemnification under this Agreement: (i) shall be reduced by any insurance proceeds actually received from third party insurers with respect to such Loss; (aii) shall be reduced by any amounts recovered reduction in Taxes actually paid (or any increase in any Tax refund actually received) by the Indemnified Party under applicable insurance policiesas a result of the incurrence or payment of such Loss in the taxable year of the incurrence or payment of such Loss, under or in any prior taxable year; and (iii) shall be reduced by indemnification or similar agreements, or reimbursement payments actually received from any other Person alleged to be responsible for any Losses or other rights of recovery third parties with respect to such Loss, net, in the case of each of clauses (i) and (ii) above, of any reasonable costs associated with the recovery of such amounts. In the event any Indemnified Party actually recovers any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Losses, net of in each case at any deductible or time subsequent to any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and (b) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been madepursuant to this Article X, then such Indemnified Party or its Affiliates shall thereafter promptly reimburse the Indemnifying Party for any indemnity payment made up to the amount actually received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence net of any Lossescosts, an Indemnified Party shall use commercially reasonable efforts to seek recovery under any and all available third party insurance policies fees or third party indemnification obligations or other rights of recovery with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party in collecting such amount); and (including all fees d) except with respect to those actually awarded and expenses paid on account of counsel) a Third Party Claim, and identified as such in connection with such Proceeding award, no party shall be liable for punitive, exemplary, speculative or remote damages, or any damages based on any multiple of earnings or revenue or loss of profits, whether based on contract, tort, strict liability, other Law or otherwise and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policywhether or not arising from any other party’s sole, agreement joint or rightconcurrent negligence, the Indemnified Party shall assign the rights to recovery under such policy, agreement strict liability or right to the Indemnifying Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseother fault.

Appears in 1 contract

Samples: Merger Agreement (J. Alexander's Holdings, Inc.)

Calculation of Losses. In calculating The amount of any amount due hereunder in respect of Losses, Losses subject to indemnification under Section 9.2(a) shall be reduced by (a) calculated net of any amounts recovered by the Indemnified Party Acquiror or its Affiliates (including the Surviving Corporation after the Closing) under applicable insurance policiespolicies held by the Acquiror or its Affiliates (net of all direct unreimbursed collection expenses). The Acquiror and its Affiliates shall seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder, under and the Acquiror, Merger Sub and the Company shall not terminate or cancel any indemnification insurance policies maintained by the Company for periods prior to the Closing; provided, however, that none of the Acquiror nor its Affiliates shall be obligated to resort to litigation against insurance carriers in order to pursue any insurance claims except in the case of claims in excess of $500,000 where (i) the Acquiror and its Affiliates conclude in good faith after discussing the matter with the Stockholder Representative that they have a reasonable chance of success on the merits or similar agreements(ii) the Principal Stockholders direct the Acquiror in writing to proceed with litigation and agree in writing to indemnify the Acquiror and its Affiliates for fifty percent (50%) of any unreimbursed collection expenses relating thereto that exceed the amount recovered from the insurance company. In the event that an insurance recovery is made by the Acquiror, Merger Sub, the Surviving Corporation or from any other Person alleged to be responsible for any Losses or other rights of recovery their Affiliates with respect to any Loss for which any such LossesPerson has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of all direct unreimbursed collection expenses) shall be made promptly to the Stockholder Representative (on behalf of the Principal Stockholders). The amount of any claims or Losses subject to indemnification pursuant to Article VII or Article IX shall be calculated net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery and (b) any net Tax benefit, saving or reduction in Taxes benefits actually realized by the Indemnified Party or its Affiliates, attributable in the year of the Loss resulting from the matter giving rise to the accrual, incurrence or payment of any such Lossesindemnification claim hereunder. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party Except for any payment made up to the amount received or actually realized by the Indemnified Party or its Affiliates; provided, however, that such reimbursement shall be required only to the extent that such Tax benefit, saving or reduction in Taxes results Losses included in a cash Tax savings both (i) final, nonappealable order or decision issued by a court of competent jurisdiction relating to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Indemnified Third Party shall use commercially reasonable efforts to seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policy, agreement or right, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying PartyClaim, in which case the Indemnifying Party may pursue recovery under such policyno event will Losses include claims for consequential, agreement punitive or right at its cost and expenseincidental damages, including consequential damages for business interruption, lost profits, lost business opportunity or damage to business reputation.

Appears in 1 contract

Samples: Merger Agreement (Integral Systems Inc /Md/)

Calculation of Losses. In calculating (i) The amount of any amount due hereunder in respect of LossesLosses payable under Section 6.9, Losses this Section 9.1 or Section 9.9 by the indemnifying party shall be reduced by net of any (ai) any amounts recovered by the Indemnified Party indemnified party or its Affiliates under applicable insurance policies, including any captive insurance program of Seller, or from any other Person alleged to be responsible therefor, and (ii) Tax benefit actually realized by the indemnified party or its Affiliates (in the form of an increase in cash refunds received or as a reduction in Taxes otherwise due) arising from the incurrence or payment of any such Loss. If the indemnified party (i) receives any amounts under any indemnification or similar agreementsapplicable insurance policies, or from any other Person alleged to be responsible for any Losses Loss, then such indemnified party shall promptly reimburse the indemnifying party for any payment made or other rights of recovery with respect to such Losses, net of any deductible or any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party such indemnifying party in obtaining connection with providing such recovery and (b) any Tax benefit, saving or reduction in Taxes actually realized by the Indemnified Party or its Affiliates, attributable to the accrual, incurrence or payment of any such Losses. If an Indemnified Party or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up to the amount received or actually realized by the Indemnified Party indemnified party, net of any expenses incurred by such indemnified party in collecting such amount, or its Affiliates; provided(ii) actually realizes or receives any net Tax benefit in the year the Loss were incurred (or in the immediately succeeding year) that was not initially included in the calculation of Loss, however, that then such reimbursement indemnified party shall be required only promptly pay to the extent that indemnifying party the amount of such net Tax benefit, saving or reduction in Taxes results in a cash Tax savings both (i) to the Company Group on a stand-alone basis and (ii) to any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence net of any Losses, an Indemnified Party shall use commercially reasonable efforts to seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses incurred by such indemnified party in connection with seeking any collecting such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, amount. (ii) an Indemnified Party Seller and Xxxxxxxx shall not be required liable under Section 6.9, this Section 9.1 or Section 9.9 for any (A) Loss relating to commence any matter to the extent that (1) the Purchaser Indemnitees had otherwise been compensated for such matter pursuant to the calculation of Final Working Capital, the adjustment of the Purchase Price under Section 2.2(a) or defend 2.4 or any other provisions of this Agreement, or (2) such Losses are caused by or result from any action that Seller or any Seller’s Shareholder is requested to take by Purchaser or any of its Affiliates, or for which Purchaser or its Affiliates provide consent, (B) consequential, incidental, indirect, special, or other similar Losses, except to the extent such Losses are finally awarded to be payable to a Proceeding third party by a court of competent jurisdiction, (C) exemplary, punitive, opportunity cost, or other similar Losses, (D) Losses for lost profits or diminution in connection with seeking value, (E) Losses based on any such recovery multiple of earnings or similar calculation, or (F) Losses that would not exist if not for, or to the Indemnifying Party agrees to bear extent aggravated by, any act or wrongful omission of the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and Purchaser Indemnitees. (iii) if elected by Each indemnified party must mitigate in accordance with Legal Requirements any Losses for which such indemnified party seeks indemnification under this Agreement. (iv) Each indemnified party and its Affiliates shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Losses payable under Section 6.9, this Section 9.1 or Section 9.9 and the Indemnifying Party indemnifying party shall be deemed subrogated to all such rights of the indemnified party; provided that such obligations and subrogation shall, to the extent waiver of subrogation is permitted under by the applicable policyunderlying policies, agreement not provide for or rightallow claims against Seller, Xxxxxxxx or the Indemnified Party shall assign other Seller’s Shareholders with respect to claims relating to Environmental Liabilities and the rights to recovery under such policy, agreement or right to the Indemnifying Party, matters set forth in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expenseSection 9.13 hereof.

Appears in 1 contract

Samples: Equity Purchase Agreement (Caseys General Stores Inc)

Calculation of Losses. In calculating The amount of any amount due hereunder in respect of Losses, Losses Damages for which indemnification is provided under this Section 4.7 or Sections 4.8(b) or (c) shall be reduced by (a) net of any amounts actually recovered by the Indemnified Party under applicable insurance policies, under any indemnification or similar agreements, or from any other Person alleged to be responsible for any Losses or other rights of recovery policies with respect to such Losses, net Damages and shall be (i) increased to take account of any deductible or any other reasonable and necessary out-of-pocket expense net Tax cost incurred by the Indemnified Party in obtaining arising from the receipt of indemnity payments hereunder (grossed up for such recovery increase) and (bii) reduced to take account of any net Tax benefit, saving or reduction in Taxes actually benefit realized by the Indemnified Party or its Affiliates, attributable to arising from the accrual, incurrence or payment of any such LossesDamages, 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. If Any indemnity payment under this Section 4.7 or Sections 4.8(b) or (c) shall be treated as an Indemnified Party adjustment to the Adjusted Consideration for Tax purposes, or its Affiliates receives or actually realizes, as applicable, any such recovery or Tax benefit, saving or reduction in Taxes after settlement of an indemnification payment obligation intended to be retained by the Indemnifying Party has been madeCompany although paid by Buyer, then such Indemnified Party unless a final determination (which shall include the execution of a Form 870-AD or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made up successor form) with respect to the amount received or actually realized by the Indemnified Party or any of its Affiliates; provided, however, that affiliates causes any such reimbursement shall payment not to be required only treated as an adjustment to the extent 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 such 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 benefitAgency and all proposed filings and submissions regarding the proposed recharacterization, saving (3) shall consult with the Consulted Party regarding the conduct of the contest, and (4) shall not settle or reduction 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 Taxes results in a cash Tax savings both (i) computing the amount of any indemnity payable to the Company Group on a stand-alone basis Affected Party, continue to treat its indemnity payments as an adjustment to the Adjusted Consideration and (ii) to not as provided in any affiliated, consolidated, combined, unitary or similar group in which the members of the Company Group are included. In the event of the occurrence of any Losses, an Indemnified Party shall use commercially reasonable efforts to seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery final determination made with respect to such Losses; provided, that, if an Indemnified Party is denied recovery under any third party insurance policy, the rights of such Indemnified Party to seek indemnification under this Agreement shall not be affected; provided, further, that (i) if an Indemnified Party reasonably determines that it will incur material out-of-pocket costs or expenses in connection with seeking any such recovery, such Indemnified Party shall be required to pursue such recovery only if the Indemnifying Party agrees to bear such costs and expenses, (ii) an Indemnified Party shall be required to commence or defend a Proceeding in connection with seeking any such recovery if the Indemnifying Party agrees to bear the out-of-pocket costs and expenses incurred by the Indemnified Party (including all fees and expenses of counsel) in connection with such Proceeding and (iii) if elected by the Indemnifying Party and to the extent permitted under the applicable policy, agreement or right, the Indemnified Party shall assign the rights to recovery under such policy, agreement or right to the Indemnifying Affected Party, in which case the Indemnifying Party may pursue recovery under such policy, agreement or right at its cost and expense.

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Samples: Purchase Agreement (Watkins Johnson Co)