Common use of Losses Net of Insurance, Etc Clause in Contracts

Losses Net of Insurance, Etc. Subject to the terms and conditions of this Article IX, following the Closing: (a) The amount of any Loss for which indemnification is provided under this Article IX shall be net of any amounts (i) actually recovered or (ii) which are covered by, and recoverable, on a commercially reasonable basis, by the Indemnified Person under, insurance policies in effect and applicable to such Loss and of any related reserve in respect thereof reflected on the final Closing Statement of Assets and Liabilities. (b) Any payment or indemnity required to be made pursuant to Sections 9.1, 9.2 or 9.3 shall be adjusted to take into account any reduction in Taxes realized by the Indemnified Person (which term shall, for purposes of this paragraph, include the ultimate payer(s) of Taxes in the case of an Indemnified Person that is a branch or a disregarded entity or other pass-through entity for any Tax purpose) as a result of the Loss giving rise to the payment or indemnity. In determining the amount necessary to be added to any payment or indemnity in order to accomplish the foregoing, the parties hereto agree (a) to treat all Taxes required to be paid by, and all reductions in Tax realized by any Indemnified Person, as if such Indemnified Person were subject to tax at the highest marginal tax rates (for both federal and state, as determined on a combined basis) applicable to such Indemnified Person and (b) to treat any indemnification payments made to Buyer pursuant to this Agreement as an adjustment to the final Purchase Price, unless either party receives a written opinion, reasonably satisfactory in <PAGE> 53 form and substance to the other party, of a law firm with appropriate experience and expertise to the effect that it is not or is not likely to be permissible to treat such payments in that manner on a federal, state or local income tax return. (c) Each party agrees that it will not seek punitive damages as to any matter under, relating to or arising out of the Transaction Documents or the Transactions. (d) Notwithstanding Sections 9.1 and 9.3, Buyer shall not be entitled to indemnification under this Article IX with respect to any Loss that is reserved as a Liability on the Closing Statement of Assets and Liabilities; provided, however, that this limitation only applies up to the amount of the reserve so reflected on the Closing Statement of Assets and Liabilities. (e) The parties hereto agree that the indemnification provisions of this Article IX are intended to provide the exclusive remedy following the Closing as to all Losses either may incur arising from or relating to the Transaction Documents or the Transactions, and each party hereby waives, to the full extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation. (f) The indemnities herein are intended solely for the benefit of the Persons expressly identified in this Article IX (and their permitted successors and assigns) and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Person. (g) If any party fails to deliver a payment to the other under any of Sections 9.1, 9.2 or 9.3 within fifteen (15) Business Days after the final determination or adjudication (after expiration of all applicable appeal periods) of the amount of such Loss, the amount due will bear interest from its due date to the date it is paid at a per annum rate equal to the rate announced by Citibank, N.A. in the City of New York as its base rate in effect on the date such payment is due.

Losses Net of Insurance, Etc. Subject to the terms and conditions of this Article IX, following the Closing: (a) The amount of any Purchaser Loss or Seller Loss for which indemnification is provided under this Article IX shall be net of any amounts (i) actually recovered or (ii) which are covered byrecoverable by the indemnified party under insurance policies with respect to such Purchaser Loss or Seller Loss, as the case may be, and recoverable, on a commercially reasonable basis, by the Indemnified Person under, insurance policies in effect and applicable shall be reduced to such Loss and take account of any related reserve in net Tax benefit (including as a result of any basis adjustment) of the indemnified party arising from the incurrence or payment of any such Purchaser Loss or Seller Loss, as the case may be. In computing the amount of any such Tax benefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination (which shall include the execution of a Form 870-AD or successor form) with respect thereof reflected on to the final Closing Statement indemnified party or any of Assets and Liabilitiesits affiliates causes any such payment not to be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes. (b) Any payment or indemnity required to be made pursuant to Sections 9.1The parties (and, 9.2 or 9.3 shall be adjusted to take into account any reduction in Taxes realized by the Indemnified Person (which term shall, for purposes of this paragraph, include the ultimate payer(s) of Taxes in the case of an Indemnified Person that is a branch or a disregarded entity or other pass-through entity for any Tax purpose) as a result their acceptance of the Loss giving rise to the payment or indemnity. In determining the amount necessary to be added to any payment or indemnity in order to accomplish the foregoing, the parties hereto agree (a) to treat all Taxes required to be paid by, and all reductions in Tax realized by any Indemnified Person, as if such Indemnified Person were subject to tax at the highest marginal tax rates (for both federal and state, as determined on a combined basis) applicable to such Indemnified Person and (b) to treat any indemnification payments made to Buyer pursuant to this Agreement as an adjustment to the final Purchase Price, unless either party receives a written opinion, reasonably satisfactory in <PAGE> 53 form and substance to the other party, of a law firm with appropriate experience and expertise to the effect that it is not or is not likely to be permissible to treat such payments in that manner on a federal, state or local income tax return. (c) Each party agrees that it will not seek punitive damages as to any matter under, relating to or arising out of the Transaction Documents or the Transactions. (d) Notwithstanding Sections 9.1 and 9.3, Buyer shall not be entitled to indemnification benefits under this Article IX Agreement, each Purchaser Indemnified Party and Seller Indemnified Party) hereby agree that their sole and exclusive remedy after Closing with respect to any Loss that is reserved as a Liability on and all Losses relating to any or all of this Agreement, the Closing Statement of Assets Company and Liabilities; provided, however, that this limitation only applies up the Interests (other than Losses for fraud) shall be pursuant to the amount of the reserve so reflected on the Closing Statement of Assets and Liabilities. (e) The parties hereto agree that the indemnification provisions of this Article IX are intended to provide the exclusive remedy following the Closing as to all Losses either may incur arising from or relating to the Transaction Documents or the Transactions, and each party hereby waives, to the full extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation. (f) The indemnities herein are intended solely for the benefit of the Persons expressly identified set forth in this Article IX (and their permitted successors and assigns) and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other PersonIX. (g) If any party fails to deliver a payment to the other under any of Sections 9.1, 9.2 or 9.3 within fifteen (15) Business Days after the final determination or adjudication (after expiration of all applicable appeal periods) of the amount of such Loss, the amount due will bear interest from its due date to the date it is paid at a per annum rate equal to the rate announced by Citibank, N.A. in the City of New York as its base rate in effect on the date such payment is due.

Losses Net of Insurance, Etc. Subject to the terms and conditions of this Article IX, following the Closing: (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of all amounts actually recovered by the Indemnified Person under insurance policies with respect to such Loss and shall be net of any amounts (i) actually recovered or (ii) which are covered by, and recoverable, on a commercially reasonable basis, by the Indemnified Person under, insurance policies in effect and applicable to such Loss and of any related reserve in respect thereof reflected on the final Final Closing Statement of Assets and LiabilitiesBalance Sheet. (b) Any If the Indemnifying Person makes any payment or indemnity required to be made pursuant to Sections 9.1under this Article X in respect of any Losses, 9.2 or 9.3 the Indemnifying Person shall be adjusted subrogated, to take into account the extent of such payment and except to the extent that such subrogation is not permitted by the terms of any reduction in Taxes realized by insurance policy or other document, to the rights of the Indemnified Person (which term shall, for purposes of this paragraph, include the ultimate payer(s) of Taxes in the case of an Indemnified against any insurer or third Person that is a branch or a disregarded entity or other pass-through entity for any Tax purpose) as a result of the Loss giving rise to the payment or indemnity. In determining the amount necessary to be added to any payment or indemnity in order to accomplish the foregoing, the parties hereto agree (a) to treat all Taxes required to be paid by, and all reductions in Tax realized by any Indemnified Person, as if such Indemnified Person were subject to tax at the highest marginal tax rates (for both federal and state, as determined on a combined basis) applicable with respect to such Indemnified Person and (b) to treat any indemnification payments made to Buyer pursuant to this Agreement as an adjustment to the final Purchase Price, unless either party receives a written opinion, reasonably satisfactory in <PAGE> 53 form and substance to the other party, of a law firm with appropriate experience and expertise to the effect that it is not or is not likely to be permissible to treat such payments in that manner on a federal, state or local income tax returnLosses. (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person shall, in any event, be liable to any Indemnified Person for any consequential damages, including, but not limited to, loss of revenue or income, cost of capital, diminution in value or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement. Each party agrees that it will not seek punitive damages as to any matter under, relating to or arising out of the Transaction Documents or Transactions. The foregoing shall not be interpreted, however, to limit indemnification for the TransactionsLosses incurred as a result of the assertion by a third Person (other than the parties hereto, Mexico Sub and their respective successors and assigns) in a Third-Party Claim of claims for damages of the foregoing type. (d) Notwithstanding Sections 9.1 and 9.3, Buyer shall not be entitled to indemnification under this Article IX with respect to any Loss that is reserved as a Liability on the Closing Statement of Assets and Liabilities; provided, however, that this limitation only applies up to the amount of the reserve so reflected on the Closing Statement of Assets and Liabilities. (e) The parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy following the Closing as to all Losses that either party may incur arising from from, or relating to the Transaction Documents or the Transactions, Transactions contemplated hereby and each party hereby waives, to the full extent they it may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation, including no limitation of any right to contribution arising under CERCLA or any other Requirement of Law, and except as set forth in Sections 5.7(b) and 12.12, respectively, in respect of equitable remedies. (fe) The indemnities herein are intended solely Any indemnification payment for the benefit of the Persons expressly identified in Taxes required under this Article IX (X shall for purposes of federal, state and their permitted successors and assigns) and are in no way intended tolocal income Taxes, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Persontreated as a purchase price adjustment. (g) If any party fails to deliver a payment to the other under any of Sections 9.1, 9.2 or 9.3 within fifteen (15) Business Days after the final determination or adjudication (after expiration of all applicable appeal periods) of the amount of such Loss, the amount due will bear interest from its due date to the date it is paid at a per annum rate equal to the rate announced by Citibank, N.A. in the City of New York as its base rate in effect on the date such payment is due.

Losses Net of Insurance, Etc. Subject to the terms and conditions of this Article IXARTICLE V, which terms and conditions shall not be applicable to any Losses arising from a breach of Section 4.8, Section 4.9, Section 4.11, the Thailand Trademark License Agreement or the China Trademark License Agreement, following the relevant Closing: (a) The amount of any Loss for which indemnification is provided under this Article IX ARTICLE V shall be net of any amounts (i) actually recovered or (ii) which are covered by, and recoverable, on a commercially reasonable basis, by the Indemnified Person underPerson, in each of (i) and (ii) under insurance policies in effect and applicable to such Loss and of any related reserve in respect thereof reflected on the final Closing Statement of Assets and LiabilitiesLoss. (b) Any payment or indemnity required to be made pursuant to Sections 9.1, 9.2 Section 5.1 or 9.3 Section 5.2 shall be adjusted to take into account any reduction in Taxes that may be realized at any time by the Indemnified Person or any of such Person’s Affiliates (which term shall, for purposes of this paragraph, include the ultimate payer(s) of Taxes in the case of an Indemnified Person that is a branch or a disregarded entity or other pass-through entity for any Tax purpose) as a result of the Loss giving rise to the payment or indemnity. In determining the amount necessary to be added to any payment or indemnity in order to accomplish the foregoing, the parties Parties hereto agree (a) to treat all Taxes required to be paid by, and all reductions in Tax realized by any Indemnified Person or any of such Person’s Affiliates, as if such Indemnified Person or any of such Person’s Affiliates were subject to tax Tax at the highest marginal tax Tax rates (for both federal and state, as determined on a combined basis) applicable to such Indemnified Person and (b) to treat or any indemnification payments made to Buyer pursuant to this Agreement as an adjustment to the final Purchase Price, unless either party receives a written opinion, reasonably satisfactory in <PAGE> 53 form and substance to the other party, of a law firm with appropriate experience and expertise to the effect that it is not or is not likely to be permissible to treat such payments in that manner on a federal, state or local income tax returnPerson’s Affiliates. (c) Each party agrees that it will In connection with an Indemnified Person’s rights under this ARTICLE V, an Indemnified Person may only seek actual damages and may not seek punitive any other damages, including but not limited to punitive, consequential (including lost profits) and incidental damages, or damages argued to be associated with a diminution in value, as to any matter under, relating to or arising out of the Transaction Documents or the Transactions. (d) Notwithstanding Sections 9.1 Any Liability for indemnification under this ARTICLE V shall be determined without duplication of recovery by reason of the set of facts giving rise to such Liability constituting a breach of more than one representation, warranty, covenant or undertaking, or one or more rights to indemnification. Without limiting the generality of the foregoing and 9.3notwithstanding Section 5.1, the Buyer shall not be entitled to indemnification under this Article IX ARTICLE V with respect to any Loss to the extent that any such Loss would constitute a duplicative payment of amounts recovered as a Purchase Price adjustment pursuant to Section 1.9 or such Loss is reflected as a Liability on the Financial Statements. (e) No Person shall be entitled to indemnification under this ARTICLE V with respect to any Loss that is reserved as attributable to any action taken or omitted to be taken by such Person or any of its Affiliates. The Indemnified Person shall cooperate with each Indemnifying Person with respect to resolving any Liabilities with respect to which such Person is obligated to indemnify the other Person, including by making commercially reasonable efforts to mitigate or resolve any such Liabilities. In the event that the Indemnified Person shall fail to cooperate and make such efforts to mitigate or resolve any such Liabilities, then notwithstanding anything else to the contrary contained herein, each Indemnifying Person shall not be required to indemnify any Person for any Loss that could reasonably be expected to have been avoided if the Indemnified Person had made such efforts. The Indemnified Person shall act in a Liability on commercially reasonable manner in addressing any Liabilities, events or actions that may provide the Closing Statement basis for indemnification hereunder (that is, such Indemnified Person shall respond to such Liability, event or action in the same manner that it would respond in the absence of Assets and Liabilitiesthe indemnification provided for in this Agreement, but in no event less than a commercially reasonable response). (f) No Person shall be entitled to indemnification under this ARTICLE V with respect to any Loss arising from: (i) any change in Law or policy or administrative practice of any Government Entity after the relevant Closing; provided, however, that this limitation only applies up or (ii) any change in relevant accounting standards or the application of accounting standards or policies applicable to the Subject Companies after the relevant Closing. (g) When determining the amount of any indemnifiable Losses under this ARTICLE V, the reserve so reflected on amount subject to indemnification, including for purposes of determining whether any dollar thresholds have been reached, shall be subject to the Closing Statement Pro-Rata Percentage Interest. For purposes of Assets clarity, for each identifiable dollar of indemnifiable Loss with respect to PDITL and LiabilitiesPD Trading, the amount to be used for purposes of determining the indemnifiable Losses and relevant dollar thresholds under this ARTICLE V shall be 75.47% of each such dollar as it relates to PDITL and 49.00% of each such dollar as it relates to PD Trading. (eh) The parties hereto agree that As between the Parties and any Indemnified Person and Indemnifying Person, the indemnification provisions of contained in this Article IX ARTICLE V are intended to provide the sole and exclusive remedy following the relevant Closing as to all Losses either any Party may incur arising from or relating to the Transaction Documents (or the representations, warranties or covenants contained therein) or the Transactions, and each party Party (on behalf of itself and its Affiliates) hereby waives, to the full extent they may do so, any other rights or remedies that may arise under contract, common law, or any applicable statute, rule or regulationregulation and hereby covenants that it and all of its Affiliates shall refrain from, directly or indirectly, asserting any Action or Proceeding of any kind against any Person based on any matter purported to be waived hereby. (fi) Upon making any payment to an Indemnified Person for any indemnification claim pursuant to this ARTICLE V, the Indemnifying Person shall be subrogated, to the extent of such payment, to any rights which the Indemnified Person or its Affiliates may have against any other Persons with respect to the subject matter underlying such indemnification claim and the Indemnified Person shall take such actions as the Indemnifying Person may reasonably require to perfect such subrogation or to pursue such rights against such other Persons as the Indemnified Person or its Affiliates may have. (j) The indemnities herein are intended solely for the benefit of the Persons expressly identified in Section 4.8, Section 4.9, Section 4.11, Section 4.23(c) and this Article IX ARTICLE V (and their permitted successors and assigns) and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Person. (g) If any party fails to deliver a payment to the other under any of Sections 9.1, 9.2 or 9.3 within fifteen (15) Business Days after the final determination or adjudication (after expiration of all applicable appeal periods) of the amount of such Loss, the amount due will bear interest from its due date to the date it is paid at a per annum rate equal to the rate announced by Citibank, N.A. in the City of New York as its base rate in effect on the date such payment is due.

Losses Net of Insurance, Etc. Subject to the terms and conditions of this Article IX11, following the Closing: (a) The amount of any Loss Damages for which indemnification is provided under this Article IX Agreement shall be net of any amounts (i) actually recovered or (ii) which are covered by, by and recoverable, on a commercially reasonable basis, by the Indemnified Person under, insurance policies in effect and applicable to such Loss Damages or from other third parties and of any related reserve in and respect thereof reflected on the final Closing Statement of Assets and LiabilitiesFinancial Statements. (b) Any payment or indemnity required to be made pursuant to Sections 9.1, 9.2 11.2 or 9.3 11.3 shall be adjusted to take into account any reduction in Taxes realized by the Indemnified Person Persons (which term shall, for purposes of this paragraphParagraph, include the ultimate payer(s) of Taxes in the case of an Indemnified Person that is a branch or a disregarded entity or other pass-through entity for any Tax purposepurposes) as a result of the Loss Damages giving rise to the payment or indemnity. In determining the amount necessary to be added to any payment or indemnity in order to accomplish the foregoing, the parties hereto agree (a) to treat all Taxes required to be paid by, and all reductions in Tax realized by any Indemnified Person, as if such Indemnified Person were subject to tax at the highest marginal tax rates (for both federal and state, as determined on a combined basis) applicable to such Indemnified Person and (b) to treat any indemnification payments made to Buyer pursuant to this Agreement as an adjustment to the final Purchase Price, unless either party receives a written opinion, reasonably satisfactory in <PAGE> 53 form and substance to the other party, of a law firm with appropriate experience and expertise to the effect that it is not or is not likely to be permissible to treat such payments in that manner on a federal, state or local income tax return. (c) Each party agrees that it will not seek punitive punitive, exemplary, special, incidental or consequential damages (other than such damages sought or obtained by a third party) as to any matter under, relating to or arising out of the Transaction Documents this Agreement or the TransactionsContemplated Transactions (including under any loss of profits theory or purchase price multiplier calculations). (d) Notwithstanding Sections 9.1 and 9.3Section 9.2, Buyer shall not be entitled to indemnification under this Article IX with respect to any Loss that is Damages to the extent reserved as a Liability liability on the Closing Statement of Assets and Liabilities; provided, however, that this limitation only applies up to the amount of the reserve so reflected on the Closing Statement of Assets and LiabilitiesFinancial Statements. (e) The Except for such equitable remedies as may be available to enforce Sections 10.1, 10.2 and 12 of this Agreement, the parties hereto agree that the indemnification provisions of in this Article IX 11 are intended to provide include the exclusive remedy following the Closing as to all Losses Damages either may incur arising from or relating to the Transaction Documents Proposed Transactions or the Transactionsthis Agreement, and each party hereby waives, to the full extent they may do so, any other of the rights or remedies that may arise under any applicable statute, rule or regulation. (f) The indemnities herein are intended solely for the benefit of the Persons person expressly identified in this Article IX 11 (and their permitted successors and assigns) and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Personperson. (g) If any party fails to deliver a payment to the other required under any of Sections 9.1, 9.2 or 9.3 this Article 11 within fifteen (15) Business Days business days after the final determination or adjudication (after expiration of all applicable appeal periods) of the amount of such LossDamages, the amount due will bear interest from its due date to the date it is paid at a per annum rate equal to the prime rate announced by Citibank, N.A. published in the City of New York as its base rate in effect Wall Street Journal on the date such payment is due.

Losses Net of Insurance, Etc. Subject to the terms and conditions of this Article IX, following the Closing: (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of all amounts actually recovered by the Indemnified Person under insurance policies with respect to such Loss and shall be net of any amounts (i) actually recovered or (ii) which are covered by, and recoverable, on a commercially reasonable basis, by the Indemnified Person under, insurance policies in effect and applicable to such Loss and of any related reserve in respect thereof reflected on the final Closing Statement of Assets and LiabilitiesBalance Sheet. (b) Any If the Indemnifying Person makes any payment or indemnity required to be made pursuant to Sections 9.1under this Article X in respect of any Losses, 9.2 or 9.3 the Indemnifying Person shall be adjusted subrogated, to take into account the extent of such payment and except to the extent that such subrogation is not permitted by the terms of any reduction in Taxes realized by insurance policy, to the rights of the Indemnified Person (which term shall, for purposes of this paragraph, include the ultimate payer(s) of Taxes in the case of an Indemnified Person that is a branch against any insurer or a disregarded entity or other pass-through entity for any Tax purpose) as a result of the Loss giving rise to the payment or indemnity. In determining the amount necessary to be added to any payment or indemnity in order to accomplish the foregoing, the parties hereto agree (a) to treat all Taxes required to be paid by, and all reductions in Tax realized by any Indemnified Person, as if such Indemnified Person were subject to tax at the highest marginal tax rates (for both federal and state, as determined on a combined basis) applicable third party with respect to such Indemnified Person and (b) to treat any indemnification payments made to Buyer pursuant to this Agreement as an adjustment to the final Purchase Price, unless either party receives a written opinion, reasonably satisfactory in <PAGE> 53 form and substance to the other party, of a law firm with appropriate experience and expertise to the effect that it is not or is not likely to be permissible to treat such payments in that manner on a federal, state or local income tax returnLosses. (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no party shall, in any event, be liable to any Indemnified Person for any consequential damages, including, but not limited to, loss of revenue or income, cost of capital, diminution in value or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement. Each party agrees that it will not seek punitive damages from any Indemnified Person as to any matter under, relating to or arising out of the Transaction Documents or the Transactions. (d) Notwithstanding Sections 9.1 and 9.3, Buyer shall not be entitled to indemnification under this Article IX with respect to any Loss that is reserved as a Liability on the Closing Statement of Assets and Liabilities; provided, however, that this limitation only applies up to the amount of the reserve so reflected on the Closing Statement of Assets and Liabilities. (e) The parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy following the Closing as to all Losses either each may incur arising from from, or relating to the Transaction Documents or the Transactions, transactions contemplated hereby and each party Buyer hereby waives, to the full extent they may do so, waives any other rights or remedies that may arise under any applicable statute, rule or regulation, including no limitation of any right to contribution arising under CERCLA or otherwise. (fe) The indemnities herein are intended solely Any indemnification payment for the benefit of the Persons expressly identified in Taxes required under this Article IX (X shall for purposes of federal, state and their permitted successors and assigns) and are in no way intended tolocal income Taxes, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Persontreated as a purchase price adjustment. (g) If any party fails to deliver a payment to the other under any of Sections 9.1, 9.2 or 9.3 within fifteen (15) Business Days after the final determination or adjudication (after expiration of all applicable appeal periods) of the amount of such Loss, the amount due will bear interest from its due date to the date it is paid at a per annum rate equal to the rate announced by Citibank, N.A. in the City of New York as its base rate in effect on the date such payment is due.