Calculation of Losses. In calculating any amount indemnifiable hereunder in respect of Losses, such Losses shall be reduced by (a) any amount 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 with respect to such Losses (and the Indemnified Party shall use commercially reasonable efforts to seek such recoveries), 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 actually realized to the Indemnified Party or its Affiliates in connection with the accrual, incurrence or payment of any such Losses (determined as actually realized on a “with or without” basis). If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) above 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, but not in excess of the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall 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. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No Indemnifying Party shall be responsible for Losses of an Indemnified Party to the extent caused by unlawful conduct of such Indemnified Party.
Appears in 2 contracts
Samples: Share Purchase Agreement (HNA Group Co., Ltd.), Share Purchase Agreement (HNA Group Co., Ltd.)
Calculation of Losses. In calculating (a) The amount of any amount indemnifiable hereunder in respect of Losses, such Losses Damages for which any Indemnified Party is finally determined to be entitled to indemnification under this Article VI shall be reduced by (ai) any amount insurance proceeds actually recovered received by the such Indemnified Party under applicable (together with any related insurance policies, under proceeds actually received by any indemnification or similar agreements, or from any other person alleged to be responsible for any Losses, or other rights Affiliate of recovery such Indemnified Party) with respect to such Losses Damages, (ii) any actual cash Tax savings or attributes arising from or related to such Damages, and (iii) indemnification or reimbursement payments actually received by the Investor Group or the Company Group (as applicable) from third parties with respect to such Damages.
(b) If any matter giving rise to a claim of Damages by any Indemnified Party pursuant to this Article VI is reasonably likely to be covered by any insurance policy of any Party or its Affiliates, then, without prejudice to the Indemnifying Party’s indemnification obligation hereunder, such Parties shall reasonably cooperate with one another and use commercially reasonable efforts to seek obtain reimbursement for such recoveries)Damages under such insurance policy; provided further that, net of if any deductible or any other reasonable and necessary out-of-pocket expense incurred insurance proceeds are thereafter received by the Indemnified Party in obtaining such recovery and (b) any Tax benefit actually realized to the Indemnified Party or its Affiliates in connection with the accrual, incurrence or payment of any such Losses (determined as actually realized on a “with or without” basis). If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) above after with respect to Damages that have been satisfied directly by an indemnification payment by the Indemnifying Party has been madeParty, then such Indemnified Party or its Affiliates shall promptly reimburse the each such Indemnifying Party for the amount of any such payment made, but not in excess made directly by such Indemnifying Party (up to the amount of the amount insurance proceeds actually received by the such Indemnified Party and after deducting any reasonable costs or its Affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall seek recovery under any and all available third party expenses incurred in securing such insurance policies or third party indemnification obligations or other rights of recovery with respect to such Losses. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No Indemnifying Party shall be responsible for Losses of an Indemnified Party to the extent caused by unlawful conduct of such Indemnified Partyproceeds).
Appears in 2 contracts
Samples: Unit Purchase and Subscription Agreement (Ioneer LTD), Unit Purchase and Subscription Agreement (Ioneer LTD)
Calculation of Losses. In calculating any amount indemnifiable hereunder in respect of Losses, such Losses shall be reduced by (a) any amount 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 with respect to such Losses (and the Indemnified Party shall use commercially reasonable efforts to seek such recoveries), 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 actually realized available to the Indemnified Party or its Affiliates affiliates in connection with the accrual, incurrence or payment of any such Losses (determined as actually realized on a “with or without” basis). If an Indemnified Party or its Affiliates affiliates receives any such recovery described in clause (a) above after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates affiliates shall promptly reimburse the Indemnifying Party for any payment made, but not in excess of the amount received by the Indemnified Party or its Affiliatesaffiliates. In the event of the occurrence of any Losses, an Indemnified Party shall 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. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No Indemnifying Party shall be responsible for Losses of an Indemnified Party to the extent caused by unlawful conduct of such Indemnified Party.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (HNA Group Co., Ltd.)
Calculation of Losses. In calculating The amount of any amount indemnifiable hereunder in respect of Losses, such Losses Loss for which indemnification is provided under Article VIII or this Article X shall be reduced by net of (ai) any amount amounts recovered and actually recovered received 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 Loss, and (ii) any amounts actually recovered from other third parties with respect to such Loss. In the event any Indemnified Party is entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Losses (and the for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such Indemnified Party shall use commercially reasonable efforts to seek obtain, receive or realize such proceeds, payments or recoveries), 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 actually realized to the Indemnified Party or its Affiliates in connection with the accrual, incurrence or payment of any such Losses (determined as actually realized on a “with or without” basis). If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) above 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, but not in excess of the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence of that any Lossessuch insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnified Party shall seek recovery under subsequent to receipt by such Indemnified Party of any and all available third party indemnification payment hereunder in respect of the claims to which such insurance policies or third party indemnification obligations proceeds, indemnity payments or other rights of recovery with respect to such Losses. Each third-party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No Indemnifying Party recoveries relate, appropriate refunds shall be responsible for Losses made promptly by the relevant Indemnified Parties of an Indemnified all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to the extent caused by unlawful conduct of obtain such Indemnified Partyinsurance proceeds, indemnity payments or other third-party recoveries.
Appears in 2 contracts
Samples: Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)
Calculation of Losses. In calculating The amount of any amount indemnifiable hereunder Losses for which indemnification is provided under this Article X shall (i) be net of any Tax benefits actually recognized as a cash reduction in respect of Losses, such Losses shall be reduced Taxes by (a) any amount the indemnified party and amounts actually recovered by the Indemnified Party 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 otherwise with respect to such Losses (and the Indemnified Party shall use commercially reasonable efforts to seek such recoveries), net of any deductible Tax or any other reasonable and necessary out-of-pocket expense expenses incurred by the Indemnified Party in obtaining such recovery and (b) any Tax benefit actually realized to the Indemnified Party or its Affiliates in connection with the accrualsuch recovery), incurrence or payment (ii) be net of any amounts recovered by the indemnified party from Collateral Sources, (iii) take into account all increases in Taxes payable by the indemnified party as a result of the receipt of the indemnity payment, and (iv) to the extent not previously taken into account in computing the amount of the Loss, all increases in Taxes payable by the indemnified party for all affected taxable years and periods as a result of the event giving rise to such Losses (determined as actually realized on a “with or without” basis)Loss. If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) above amounts are recovered from a Collateral Source after an indemnification indemnifying party makes a payment by the Indemnifying Party has been made, then such Indemnified Party to or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made, but not in excess of the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall 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. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No Indemnifying Party shall be responsible for Losses on behalf of an Indemnified Party pursuant to this Article X, the net proceeds thereof shall promptly be remitted to the extent caused by unlawful conduct Indemnifying Party that made such payment. The parties acknowledge and agree that no right of such Indemnified Partysubrogation to any rights of any party hereunder shall accrue or inure to the benefit of any Collateral Source.
Appears in 1 contract
Samples: Merger Agreement (Schweitzer Mauduit International Inc)
Calculation of Losses. In calculating any amount indemnifiable hereunder in respect of Losses, such Losses shall be reduced by (a) The amount of any amount Losses payable under Article 10 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor, (ii) any Tax benefit actually realized by the Indemnified Party, and (iii) amounts received by an Indemnified Party with respect to the same Losses pursuant to the Non-Core Coinsurance Agreement. If the Indemnified Party actually recovers any amounts under applicable insurance policies, under any indemnification or similar agreements, or from any other person Person alleged to be responsible for any Losses, or other rights of recovery with respect subsequent to such Losses (and the Indemnified Party shall use commercially reasonable efforts to seek such recoveries), 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 actually realized to the Indemnified Party or its Affiliates in connection with the accrual, incurrence or payment of any such Losses (determined as actually realized on a “with or without” basis). If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) above after an indemnification payment by the Indemnifying Party has been madeParty, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made, but not made or expense incurred by such Indemnifying Party in excess of connection with providing such indemnification payment up to the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence Party, net of any Losses, an expenses incurred by such Indemnified Party shall seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to in collecting such Losses. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No amount.
(b) The Indemnifying Party shall not be responsible liable under Section 10.02 for any (i) Losses of an Indemnified Party relating to any matter to the extent caused that reserves for such Losses were expressly set forth on the Pro Forma Closing Balance Sheet and such reserves reduced the amount of the Final Adjustment or (ii) consequential or punitive Losses (unless such Losses were obtained by unlawful conduct of such Indemnified Partya third party in connection with a Claim or a Third Party Representation Claim).
Appears in 1 contract
Samples: Stock Purchase Agreement (Allmerica Financial Corp)
Calculation of Losses. In calculating any amount indemnifiable hereunder in respect of Losses, such Losses shall be reduced by (a) The amount of any amount Losses for which indemnification is provided under this Article XI shall (i) be net of any Tax benefits actually recognized as a cash reduction in Taxes or by the indemnified ACTIVE 218042945 party and amounts actually recovered by the Indemnified Party 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 otherwise with respect to such Losses (and the Indemnified Party shall use commercially reasonable efforts to seek such recoveries), net of any deductible Tax or any other reasonable and necessary out-of-pocket expense expenses incurred by the Indemnified Party in obtaining such recovery and (b) any Tax benefit actually realized to the Indemnified Party or its Affiliates in connection with the accrualsuch recovery), incurrence or payment (ii) be net of any amounts recovered by the indemnified party from Collateral Sources, (iii) take into account all increases in Taxes payable by the indemnified party as a result of the receipt of the indemnity payment, and (iv) to the extent not previously taken into account in computing the amount of the Loss, all increases in Taxes payable by the indemnified party for all affected taxable years and periods as a result of the event giving rise to such Losses (determined as actually realized on a “with or without” basis)Loss. If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) above amounts are recovered from a Collateral Source after an indemnification indemnifying party makes a payment by the Indemnifying Party has been made, then such Indemnified Party to or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made, but not in excess of the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall 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. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No Indemnifying Party shall be responsible for Losses on behalf of an Indemnified Party pursuant to this Article XI, the net proceeds thereof shall promptly be remitted to the Indemnifying Party that made such payment. The Parties acknowledge and agree that no right of subrogation to any rights of any party hereunder shall accrue or inure to the benefit of any Collateral Source.
(b) Notwithstanding anything to the contrary elsewhere in this Agreement, no party shall, in any event, be liable to any other Person for any punitive damages of such other Person, except to the extent caused by unlawful conduct of such Indemnified Partypayable to a third party.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Schweitzer Mauduit International Inc)
Calculation of Losses. In calculating any amount indemnifiable hereunder in respect of Losses, such Losses shall be reduced by (a) any amount actually amounts recovered by the Indemnified Party under applicable available insurance policies, under any indemnification or similar agreementsindemnification, or from any other person alleged to be responsible for any Lossescontribution, obligations or other rights of recovery with respect to such Losses (and the Indemnified Party shall use commercially reasonable efforts to seek such recoveries)Losses, net of any deductible or any other reasonable and necessary out-of-of- pocket expense incurred by the Indemnified Party in obtaining such recovery recovery, and (b) any Tax benefit actually realized to by the Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses (determined as actually realized on a “with in the taxable year in which such Loss was accrued, incurred or without” basis)paid or in any subsequent taxable year. If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) or (b) above 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, but not in excess of the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall seek recovery under any and all available third party insurance policies or third party policies, indemnification obligations or other rights of recovery with respect to such Losses. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No Indemnifying Party shall be responsible for Losses of an Indemnified Party to the extent caused by unlawful conduct of such Indemnified Party.
Appears in 1 contract
Calculation of Losses. In calculating (a) Notwithstanding any amount indemnifiable hereunder other provision of this Agreement to the contrary, the Indemnifying Party shall not be liable under this Article XIII for any (i) Losses relating to any matter to the extent that the Indemnified Party shall have otherwise been compensated for such matter pursuant to the Purchase Price adjustment under Section 4.02; (ii) Losses that are for punitive damages; or (iii) Losses based upon any multiplier of profits, earnings, or cash flow, including, without limitation, “earnings before interest, Tax, depreciation or amortization” or any other valuation metric.
(b) If the Indemnified Party receives any payment from an Indemnifying Party in respect of Losses, 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 (but only to the extent it has recovered the full amount of such Losses) assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such indemnification payment.
(c) In calculating the amount of any Loss or indemnity for Taxes, there shall be reduced by (a) deducted an amount equal to any amount actually recovered actual reduction in indemnified Taxes realized by the Indemnified Party under applicable insurance policies, under (if and when received and treating any indemnification or similar agreements, or from resulting deductions as the last item of deduction for the taxable year) and there shall be added an amount equal (on an after-tax basis) to any other person alleged to be responsible for any Losses, or other rights of recovery with respect to such Losses (and the Indemnified Party shall use commercially reasonable efforts to seek such recoveries), net of any deductible or any other reasonable and necessary out-of-pocket expense Tax cost actually incurred by the Indemnified Party in obtaining such recovery and (b) any Tax benefit actually realized to upon the Indemnified Party receipt or its Affiliates in connection with the accrual, incurrence or payment of any such Losses (determined as actually realized on a “with or without” basis). If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) above 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, but not in excess accrual of the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall 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. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such party asserts under this Article IX. No Indemnifying Party shall be responsible for Losses of an Indemnified Party to the extent caused by unlawful conduct of such Indemnified Partyrelated indemnity payment.
Appears in 1 contract