Common use of Computation of Indemnity Payments Clause in Contracts

Computation of Indemnity Payments. (a) The amount payable under this ARTICLE IX in respect of any Loss shall be calculated net of (A) any reserves set forth in the Post-Closing Statement (including the balance sheet delivered in connection therewith), and (B) any insurance proceeds or other amounts under indemnification agreements with third parties actually received by the Indemnitee on account thereof; provided in each case that the Indemnitee shall (and shall cause its Affiliates to) use commercially reasonable efforts to obtain such insurance (and other) recoveries; and provided further that the Company Indemnified Parties shall have no right to assert any claims under this ARTICLE IX with respect to any matters that would have been covered by insurance had the Company and the Company Subsidiaries maintained the same insurance coverage following the Closing that was maintained by the Company and the Company Subsidiaries (to the extent related to the Business) immediately prior to the Closing. To the extent the Loss (including any Tax) that gives rise to an indemnity payment pursuant to ARTICLE V or this ARTICLE IX is included in income, the indemnitor shall increase such indemnity payment to the applicable Indemnitee to compensate for any Tax detriment to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such indemnity payment occurs (the aggregate of such indemnity payment and such increase, an “Indemnity Payment”). To the extent the Loss that gave rise to an Indemnity Payment results in a Tax benefit to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such Indemnity Payment occurs, the Indemnitee shall remit to the applicable indemnitor such Tax benefit (determined on a with and without basis) (a “Tax Benefit Payment”); provided that in no event shall the cumulative Tax benefit remitted by the Indemnitee exceed the amount of the applicable Indemnity Payment. If any such Tax benefit is subsequently disallowed prior to the end of the close of the taxable year in which the fourth anniversary of such Tax Benefit Payment occurs, the applicable indemnitor shall make an appropriate reconciliation payment to the Indemnitee. Notwithstanding the foregoing provisions of this Section 9.5(a), if any cap described in Section 5.11 or 9.4(c), as the case may be, is applicable and has been met, no Tax Benefit Payment shall be required to be made.

Computation of Indemnity Payments. (a) The amount payable under this ARTICLE IX VII in respect of any Loss shall be calculated net of (A) any Tax Benefit actually realized by the Indemnified Party as of the time of payment or realizable at any time thereafter on account of the event giving rise to such payment, (B) any related reserves set forth in the Post-Closing Statement (including the balance sheet delivered in connection therewith), Financial Statements and (BC) any insurance proceeds or other amounts under indemnification agreements with third parties actually received by the Indemnitee Indemnified Party on account thereof; provided provided, in each case case, that the Indemnitee Indemnified Party shall (and shall cause its Affiliates to) use commercially reasonable efforts to obtain such Tax Benefits and insurance (and other) recoveries; recoveries and provided further provided, further, that the Company Purchaser Indemnified Parties shall have no right to assert any claims under this ARTICLE IX VII with respect to any matters that would have been covered by insurance had Purchaser maintained for the benefit of the members of the Company and Group, as applicable (or caused the members of the Company Subsidiaries maintained Group, as applicable, to maintain) the same insurance coverage following the Closing that was maintained by in effect for the members of the Company and the Company Subsidiaries (to the extent related to the Business) Group immediately prior to the Closing. To the extent the Loss (including If any Tax) that gives rise Indemnified Party receives a Tax Benefit at any time after an indemnification payment is made to an indemnity payment pursuant to ARTICLE V or it under this ARTICLE IX is included in incomeVII, then the indemnitor Indemnified Party shall increase such indemnity payment promptly pay to the applicable Indemnitee to compensate for any Tax detriment to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such indemnity payment occurs (the aggregate of such indemnity payment and such increase, an “Indemnity Payment”). To the extent the Loss that gave rise to an Indemnity Payment results in a Tax benefit to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such Indemnity Payment occurs, the Indemnitee shall remit to the applicable indemnitor such Tax benefit (determined on a with and without basis) (a “Tax Benefit Payment”); provided that in no event shall the cumulative Tax benefit remitted by the Indemnitee exceed Indemnifying Party the amount of the applicable Indemnity Payment. If any such Tax benefit is subsequently disallowed prior to the end of the close of the taxable year in which the fourth anniversary of such Tax Benefit Payment occursat such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. As used in this Section 7.5, “Tax Benefit” shall include any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid due to a deduction, credit or other Tax benefit or allowance arising by reason of the event giving rise to a claim under this ARTICLE VII. In computing the amount of any Tax Benefit pursuant to this Section 7.5, the applicable indemnitor shall make an appropriate reconciliation payment to the Indemnitee. Notwithstanding the foregoing provisions of this Section 9.5(a), if any cap described in Section 5.11 or 9.4(c), as the case may be, is applicable and has been met, no Tax Benefit Payment Indemnified Party shall be required deemed to be maderecognize any items of loss, deduction or credit as a result of such indemnified Loss before recognizing any other items of loss, deduction or credit.

Computation of Indemnity Payments. (a) The amount payable under this ARTICLE IX in respect of any Loss shall be calculated net of (A) any reserves set forth in the Post-Closing Statement (including the balance sheet delivered in connection therewith), ) that are taken into account in the determination of the Company Closing Adjustment and (B) any insurance proceeds or other amounts under indemnification agreements with third parties actually received by the Indemnitee on account thereof; provided in each case that the Indemnitee shall (and shall cause its Affiliates to) use commercially reasonable efforts to obtain such insurance (and other) recoveries; and provided further that the Company Indemnified Parties shall have no right to assert any claims under this ARTICLE IX with respect to any matters that would have been covered by insurance had the Company and the Company Subsidiaries maintained the same insurance coverage following the Closing that was maintained by the Company and the Company Subsidiaries (to the extent related to the Business) immediately prior to the Closing. To the extent the Loss (including any Tax) that gives rise to an indemnity payment pursuant to ARTICLE V or this ARTICLE IX is included in income, the indemnitor shall increase such indemnity payment to the applicable Indemnitee to compensate for any Tax detriment to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such indemnity payment occurs (the aggregate of such indemnity payment and such increase, an “Indemnity Payment”). To the extent the Loss that gave rise to an Indemnity Payment results in a Tax benefit to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such Indemnity Payment occurs, the Indemnitee shall remit to the applicable indemnitor such Tax benefit (determined on a with and without basis) (a “Tax Benefit Payment”); provided that in no event shall the cumulative Tax benefit remitted by the Indemnitee exceed the amount of the applicable Indemnity Payment. If any such Tax benefit is subsequently disallowed prior to the end or unnecessary (e.g., a carryback of the close of losses into the taxable year in which the fourth anniversary of such Tax Benefit Payment occurswas taken into account), the applicable indemnitor shall make an appropriate reconciliation payment to the Indemnitee. Notwithstanding the foregoing provisions of this Section 9.5(a), if any cap described in Section 5.11 5.10 or 9.4(c), as the case may be, is applicable and has been met, no Tax Benefit Payment shall be required to be made.

Computation of Indemnity Payments. (a) The amount payable under this ARTICLE IX in respect of any Loss and all Losses shall be calculated determined net of of: (Ai) any reserves set forth in the Post-Closing Statement amounts actually recovered by Seller Indemnified Persons or Purchaser Indemnified Persons, as applicable, under insurance policies or from other collateral sources (including the balance sheet delivered in connection therewith), and (Bsuch as contribution agreements or contractual indemnities of any Person which are contained outside of this Agreement) any insurance proceeds or other amounts under indemnification agreements with third parties actually received by the Indemnitee on account thereof; provided in each case that the Indemnitee shall (and shall cause its Affiliates to) use commercially reasonable efforts to obtain such insurance (and other) recoveries; and provided further that the Company Indemnified Parties shall have no right to assert any claims under this ARTICLE IX with respect to such Losses; and (ii) any matters Tax Benefit realized by a Seller Indemnified Person or Purchaser Indemnified Person, as applicable, provided that would such Tax Benefit is deductible currently (not a deferred tax benefit) and does not place the applicable Seller Indemnified Person or Purchaser Indemnified Person, in the opinion of such indemnitee’s independent accounting firm, in an uncertain adverse tax position (i.e., doesn't have been covered by substantial authority supporting such position or which an indemnitee's accounting firm or tax counsel does not believe satisfies the "more likely than not" standard). If a Seller Indemnified Person or Purchaser Indemnified Person recovers any amount under insurance had the Company and the Company Subsidiaries maintained the same insurance coverage following the Closing that was maintained by the Company and the Company Subsidiaries (policies or other collateral sources within two years after an indemnification payment is made to him or it pursuant to this Article, such Person shall promptly pay to the extent related to Indemnifying Party that made such indemnification payment the Business) immediately prior to the Closing. To the extent the Loss (including any Tax) that gives rise to an indemnity payment pursuant to ARTICLE V or this ARTICLE IX is included in income, the indemnitor shall increase such indemnity payment to the applicable Indemnitee to compensate for any Tax detriment to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such indemnity payment occurs (the aggregate of such indemnity payment and such increase, an “Indemnity Payment”). To the extent the Loss that gave rise to an Indemnity Payment results in a Tax benefit to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such Indemnity Payment occurs, the Indemnitee shall remit to the applicable indemnitor such Tax benefit (determined on a with and without basis) (a “Tax Benefit Payment”)recovered amount; provided that in no event shall the cumulative Tax benefit remitted by amount of such payment to the Indemnitee Indemnifying Party exceed the amount of the applicable Indemnity Paymentsuch indemnification payment. If any such Tax benefit is subsequently disallowed prior to the end Any reduction of the close of the taxable year in which the fourth anniversary of such Tax Benefit Payment occurs, the applicable indemnitor shall make an appropriate reconciliation payment to the Indemnitee. Notwithstanding the foregoing provisions of Losses under this Section 9.5(a), if any cap described in Section 5.11 or 9.4(c), as the case may be, is applicable and has been met, no Tax Benefit Payment paragraph shall be required net of any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks (it being agreed that neither party shall have any obligations to be madeseek to recover any insurance proceeds in connection with making a claim under this Article).