Common use of Miscellaneous Indemnification Provisions Clause in Contracts

Miscellaneous Indemnification Provisions. (a) The Indemnifying Party agrees to indemnify any successors of the Indemnified Party to the same extent and in the same manner and on the same terms and conditions as the Indemnified Party is indemnified by the Indemnifying Party under this Article VIII. (b) The amount that an Indemnifying Party is required to pay to any Indemnified Party pursuant to this Article VIII shall be reduced (retroactively or prospectively) by any Insurance Proceeds or other amounts actually recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss (including any Insurance Proceeds in respect of a Shared Liability recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss). If an Indemnified Party shall have received the payment required by this Article VIII in respect of an Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall pay to such Indemnifying Party a sum equal to the amount of such Insurance Proceeds or other amounts actually received, up to the aggregate amount of any payments received from such Indemnifying Party pursuant to this Article VIII in respect of such Indemnifiable Loss. (c) In determining the amount of any indemnity payable under this Article VIII, such amount shall be reduced by any related Tax benefits if and when actually realized or received (but only after taking into account any Tax benefits (including, without limitation, any net operating losses or other deductions) to which the Indemnified Party would be entitled without regard to such item), except to the extent such Tax benefit has already been taken into account in determining the amount of any indemnity payable under this Article VIII in respect of the related Indemnifiable Loss. Any such Tax benefit shall be promptly repaid by the Indemnified Party to the Indemnifying Party following the time at which such recovery is realized or received pursuant to the previous sentence, minus all reasonably allocable costs, charges and expenses incurred by the Indemnified Party in obtaining such Tax benefit. Notwithstanding the foregoing, if (x) the amount of Indemnifiable Losses for which the Indemnifying Party is obligated to indemnify the Indemnified Party is reduced by any Tax benefit in accordance with the provisions of the previous sentence and (y) the Indemnified Party subsequently is required to repay the amount of any such Tax benefit or such Tax benefit is disallowed, then the obligation of the Indemnifying Party to indemnify with respect to such amounts shall be reinstated immediately and such amounts shall be paid promptly to the Indemnified Party in accordance with the provisions of this Agreement. (d) No Indemnifying Party shall be liable to an Indemnified Party under this Article VIII in respect of consequential, exemplary, special or punitive damages, or lost profits, except to the extent such consequential, exemplary, special or punitive damages, or lost profits are actually paid to a third party.

Miscellaneous Indemnification Provisions. (a) The Indemnifying Party agrees to indemnify any successors of the Indemnified Party to the same extent and in the same manner and on the same terms and conditions as the Indemnified Party is indemnified by the Indemnifying Party under this Article VIIIXI, provided that such Indemnified Party and such successor have complied with the provisions of Section 12.11, if applicable. (b) The amount that an Indemnifying Party is required to pay to any Indemnified Party pursuant to this Article VIII shall be reduced (retroactively or prospectively) by any Insurance Proceeds or other amounts actually recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss (including any Insurance Proceeds in respect of a Shared Liability recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss). If an Indemnified Party shall have received the payment required by this Article VIII in respect of an Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall pay to such Indemnifying Party a sum equal to In determining the amount of any indemnity payable under this Article XI or the number of shares of AirTouch Common Stock deliverable by U S WEST to AirTouch pursuant to Section 3.3, such Insurance Proceeds amount shall be (i) increased to take account of any net Tax cost incurred by the recipient thereof as a result of the receipt or accrual of payments hereunder (grossed-up for such increase) and (ii) reduced to take account of any net Tax benefit realized by the recipient arising from the incurrence or payment of any such payment, other amounts actually received, up than any such net Tax benefit to which the aggregate Indemnified Party would be entitled without regard to such item. In computing the amount of any payments received such Tax cost or Tax benefit, the recipient shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from such Indemnifying Party pursuant to this Article VIII in respect the receipt or accrual of such Indemnifiable Lossany payment hereunder. (c) In determining the amount of any indemnity payable under this Article VIIIXI, such amount shall be reduced by any related Tax benefits insurance recovery if and when actually realized or received (but only after taking into account any Tax benefits (including, without limitation, any net operating losses or other deductions) to which the Indemnified Party would be entitled without regard to such item), except to the extent such Tax benefit has already been taken into account in determining the amount of any indemnity payable under this Article VIII each case in respect of the related such Indemnifiable Loss. Any such Tax benefit recovery shall be promptly repaid by the Indemnified Party to the Indemnifying Party following the time at which such recovery is realized or received pursuant to the previous sentence, minus all reasonably allocable costs, charges and expenses incurred by the Indemnified Party in obtaining such Tax benefit. recovery. (d) Notwithstanding the foregoing, if (x) the amount of Indemnifiable Losses for which the Indemnifying Party is obligated to indemnify the Indemnified Party is reduced by any Tax benefit or insurance recovery in accordance with the provisions of the previous sentence this Section 11.4, and (y) the Indemnified Party subsequently is required to repay the amount of any such Tax benefit or insurance recovery or such Tax benefit or insurance recovery is disallowed, then the obligation of the Indemnifying Party to indemnify indemnification with respect to such amounts shall be reinstated immediately and such amounts shall be paid promptly to the Indemnified Party in accordance with the provisions of this Agreement. (d) No Indemnifying Party shall be liable to an Indemnified Party under this Article VIII in respect of consequential, exemplary, special or punitive damages, or lost profits, except to the extent such consequential, exemplary, special or punitive damages, or lost profits are actually paid to a third party.

Miscellaneous Indemnification Provisions. (a) The Indemnifying Party agrees to indemnify any successors of the Indemnified Party to the same extent and in the same manner and on the same terms and conditions as the Indemnified Party is indemnified by the Indemnifying Party under this Article VIII. (bi) The amount that an Indemnifying Party is required to pay to any Indemnified Party pursuant to this Article VIII XI shall be reduced (retroactively or prospectively) by any Insurance Proceeds or other amounts actually recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss (including any Insurance Proceeds in respect of a Shared Liability recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss). If an Indemnified Party shall have received the payment required by this Article VIII XI in respect of an Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall pay to such Indemnifying Party a sum equal to the amount of such Insurance Proceeds or other amounts actually received, up to the aggregate amount of any payments received from such Indemnifying Party pursuant to this Article VIII XI in respect of such Indemnifiable Loss. Each of the parties hereto agrees that, to the extent that any Indemnifiable Loss shall be covered by insurance, then such insurance coverage shall be primary, and any Indemnifying Party shall solely be responsible for Indemnifiable Losses to the extent not covered by insurance. (cii) In determining the amount of any indemnity payable under this Article VIIIXI, such amount shall be reduced by any related determined on a Net-Tax benefits if and when actually realized or received (but only after taking into account any Basis. The term “Net-Tax benefits (includingBasis” as used in this Article XI means that, without limitation, any net operating losses or other deductions) to which the Indemnified Party would be entitled without regard to such item), except to the extent such Tax benefit has already been taken into account in determining the amount of the payment necessary to indemnify any indemnity payable under this Article VIII in respect of the related party against, or reimburse any party for, any Indemnifiable Loss. Any , the amount of such Indemnifiable Loss will be determined net of any theoretical reduction in Tax benefit shall be promptly repaid realizable (assuming a hypothetical effective tax rate of 40% and without applying a discount for the time value of money or for the lack of certainty of realization) by the Indemnified Party as the result of any deduction, expense, loss credit or refund to the Indemnifying Party following Indemnified Party, and the time at which amount of such recovery is realized or received pursuant indemnity payable will be increased (i.e., “grossed up”) by the amount necessary to the previous sentence, minus all reasonably allocable costs, charges and expenses satisfy any Tax liabilities actually incurred by the Indemnified Party in obtaining as a result of its receipt of, or right to receive, such Tax benefitindemnity payment (including the payment of an additional amount or amounts hereunder) determined by using the actual marginal Federal, state, foreign or local rates for the relevant taxable period. Notwithstanding the foregoing, if (x) the amount of Indemnifiable Losses for which the Indemnifying Party is obligated to indemnify the Indemnified Party is reduced by any Tax benefit in accordance with the provisions of the previous sentence and (y) the Indemnified Party subsequently is required to repay the amount of any such Tax benefit or such Tax benefit is disallowed, then the obligation of the Indemnifying Party to indemnify with respect to such amounts shall be reinstated immediately and such amounts shall be paid promptly to the Indemnified Party in accordance with the provisions of this Agreement. (d) No Indemnifying Party shall be liable to an Indemnified Party under this Article VIII in respect of consequential, exemplary, special or punitive damages, or lost profits, except to the extent such consequential, exemplary, special or punitive damages, or lost profits are actually paid to a third party.

Miscellaneous Indemnification Provisions. (a) The Prior to enforcing any claim for indemnification against the Indemnifying Party agrees Parties under this Agreement, the Indemnified Parties shall administratively file in good faith claims with any insurers under applicable policies of insurance, if any, for the proceeds of such insurance coverage, if any, applicable to indemnify any successors the claim or event from which such indemnification right arose. In the event that insurance proceeds are paid to the Indemnified Parties respecting an event to which an indemnification right applies hereunder, such indemnification right shall apply only to the extent that the amount of Damages indemnified against exceeds such insurance proceeds actually paid to the Indemnified Parties, net of the costs and expenses of the Indemnified Parties in obtaining such insurance proceeds. If any insurance proceeds are actually realized by an Indemnified Party subsequent to the same extent and in the same manner and on the same terms and conditions as the receipt by such Indemnified Party is indemnified by of an indemnification payment hereunder in respect of the claims to which such insurance proceeds relate, appropriate refunds shall be made promptly to the Indemnifying Party under this Article VIIIregarding the amount of such indemnification payment. (b) The amount that an Indemnifying Party is required to pay to any Indemnified Party pursuant to this Article VIII shall be reduced Parties agree that: (retroactively or prospectivelyi) by any Insurance Proceeds or other amounts actually recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss (including any Insurance Proceeds in respect of a Shared Liability recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss). If an Indemnified Party shall have received act reasonably and in good faith in an effort to mitigate any Damages to which it is entitled to indemnification; and (ii) the payment required Indemnifying Parties shall be entitled to reasonably participate, at their sole cost and expense, but not control in such mitigation by this Article VIII in respect of an Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such the Indemnified Party shall pay to such Indemnifying Party a sum equal to the amount of such Insurance Proceeds or other amounts actually received, up to the aggregate amount of any payments received from such Indemnifying Party pursuant to this Article VIII in respect of such Indemnifiable LossParty. (c) In determining the amount of no event shall any indemnity payable under this Article VIII, such amount shall be reduced by any related Tax benefits if and when actually realized or received (but only after taking into account any Tax benefits (including, without limitation, any net operating losses or other deductions) to which the Indemnified Party would be entitled without regard to such item), except to the extent such Tax benefit has already been taken into account in determining the amount of recover or make a claim for any indemnity payable under this Article VIII amounts in respect of the related Indemnifiable Loss. Any consequential, incidental, indirect damages, lost profits, or punitive damages of such Tax benefit Indemnified Party, in particular, no “multiple profits” or “multiple of cash flow” or similar methodology shall be promptly repaid by used in the Indemnified Party to the Indemnifying Party following the time at which such recovery is realized or received pursuant to the previous sentence, minus all reasonably allocable costs, charges and expenses incurred by the Indemnified Party in obtaining such Tax benefit. Notwithstanding the foregoing, if (x) the amount of Indemnifiable Losses for which the Indemnifying Party is obligated to indemnify the Indemnified Party is reduced by any Tax benefit in accordance with the provisions of the previous sentence and (y) the Indemnified Party subsequently is required to repay the amount calculation of any Damages of such Tax benefit or such Tax benefit is disallowed, then the obligation of the Indemnifying Party to indemnify with respect to such amounts shall be reinstated immediately and such amounts shall be paid promptly to the Indemnified Party in accordance with the provisions of this AgreementParty. (d) No Indemnifying Party shall be liable to an Indemnified Party for any claim for indemnification under this Article VIII X for any Damages arising out of changes after the Closing Date in respect of consequential, exemplary, special any Legal Requirement or punitive damages, or lost profits, except to changes in GAAP. (e) Indemnification payments from the extent such consequential, exemplary, special or punitive damages, or lost profits are actually paid Sellers to a third partyBuyer Indemnitee shall be deemed a reduction in the Final Purchase Price.

Miscellaneous Indemnification Provisions. (ai) The Indemnifying Party agrees to indemnify any successors of the Indemnified Party to the same extent and in the same manner and on the same terms and conditions as the Indemnified Party is indemnified by the Indemnifying Party under this Article VIIIXIII. (bii) The amount that an Indemnifying Party is required to pay to any Indemnified Party pursuant to this Article VIII XIII shall be reduced (retroactively or prospectively) by any Insurance Proceeds or other amounts actually recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss (including any Insurance Proceeds in respect of a Shared Liability recovered by or on behalf of such Indemnified Party in respect of the related Indemnifiable Loss). If an Indemnified Party shall have received the payment required by this Article VIII XIII in respect of an Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall pay to such Indemnifying Party a sum equal to the amount of such Insurance Proceeds or other amounts actually received, up to the aggregate amount of any payments received from such Indemnifying Party pursuant to this Article VIII XIII in respect of such Indemnifiable Loss. (ciii) In determining the amount of any indemnity payable under this Article VIIIXIII, such amount shall be reduced by any related Tax benefits if and when actually realized or received (but only after taking into account any Tax benefits (including, without limitation, any net operating losses or other deductions) to which the Indemnified Party would be entitled without regard to such item), except to the extent such Tax benefit has already been taken into account in determining the amount of any indemnity payable pay-able under this Article VIII XIII in respect of the related Indemnifiable Loss. Any such Tax benefit shall be promptly repaid by the Indemnified Party to the Indemnifying Party following the time at which such recovery is realized or received pursuant to the previous sentence, minus all reasonably allocable costs, charges and expenses incurred by the Indemnified Party in obtaining such Tax benefit. Notwithstanding the foregoing, if (x) the amount of Indemnifiable Losses for which the Indemnifying Party is obligated to indemnify the Indemnified Party is reduced by any Tax benefit in accordance with the provisions of the previous sentence and (y) the Indemnified Party subsequently is required to repay the amount of any such Tax benefit or such Tax benefit is disallowed, then the obligation of the Indemnifying Party to indemnify with respect to such amounts shall be reinstated immediately and such amounts shall be paid promptly to the Indemnified Party in accordance with the provisions of this Agreement. (d) No Indemnifying Party shall be liable to an Indemnified Party under this Article VIII in respect of consequential, exemplary, special or punitive damages, or lost profits, except to the extent such consequential, exemplary, special or punitive damages, or lost profits are actually paid to a third party.

Miscellaneous Indemnification Provisions. (a) The amount of any claim for indemnification against the Indemnifying Party agrees to indemnify Parties under this Agreement shall be net of (i) any successors of the Indemnified Party to the same extent and in the same manner and on the same terms and conditions as the Indemnified Party is indemnified amounts actually recovered by the Indemnifying Party under this Article VIII. (b) The amount that an Indemnifying Party is required to pay to any Indemnified Party pursuant to this Article VIII shall be reduced (retroactively or prospectively) by any Insurance Proceeds or other amounts actually recovered indemnification by or on behalf agreement with any third party (“Third Party Indemnity”), and (ii) any insurance proceeds actually received as an offset against the amount of Damages arising out of such claim or event for which indemnification is sought hereunder. Prior to enforcing any claim for indemnification against the Indemnifying Parties under this Agreement, the Indemnified Parties shall administratively file in good faith claims with any insurers under applicable policies of insurance, if any, for the proceeds of such insurance coverage, if any, applicable to the claim or event from which such indemnification right arose. In the event that any Third Party Indemnity or insurance proceeds are paid to the Indemnified Parties respecting an event to which an indemnification right applies hereunder, such indemnification right shall apply only to the extent that the amount of Damages indemnified against exceeds the amount of such Third Party Indemnity or insurance proceeds, as applicable, actually paid to the Indemnified Parties, net of the costs and expenses of the Indemnified Parties in obtaining such Third Party Indemnity or insurance proceeds, as applicable. If any Third Party Indemnity or insurance proceeds are actually realized by an Indemnified Party subsequent to the receipt by such Indemnified Party of an indemnification payment hereunder in respect of the related Indemnifiable Loss (including any Insurance Proceeds in respect of a Shared Liability recovered by or on behalf of claims to which such Indemnified Party in respect of insurance proceeds relate, appropriate refunds shall be made promptly to the related Indemnifiable Loss). If an Indemnified Party shall have received the payment required by this Article VIII in respect of an Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall pay to such Indemnifying Party a sum equal to regarding the amount of such Insurance Proceeds or other amounts actually receivedindemnification payment. In addition, up to the aggregate amount of any payments received from such Indemnifying Party pursuant to this Article VIII in respect of such Indemnifiable Loss. (c) In determining the amount of any indemnity payable Damages and the amount of any Tax Losses under this Article VIII, such amount Section 8.13(c) shall be reduced by any related Tax benefits if and when actually realized or received (but only after taking into account any Tax benefits (including, without limitation, any net operating losses or other deductions) to which the Indemnified Party would be entitled without regard to such item), except to the extent such Tax benefit has already been taken into account in determining the amount of any indemnity payable under this Article VIII in respect Tax Benefit realized by the Buyer, any Affiliate of the related Indemnifiable LossBuyer, Holdco or any Subsidiary of Holdco in any taxable period after the Closing Date. Any such For purposes of this Section 9.6(a), “Tax benefit Benefit” shall mean the Assumed Tax Rate multiplied by any deduction, exclusion from income or other Tax allowance which would not, but for the event giving rise to indemnification under Section 9.2 or Section 8.13(c), be allowable. If any Tax Benefit is in the form of a credit against Tax, solely for purposes of this Section 9.6(a), the Assumed Tax Rate shall be promptly repaid by the Indemnified Party deemed to the Indemnifying Party following the time at which such recovery is realized or received pursuant to the previous sentence, minus all reasonably allocable costs, charges and expenses incurred by the Indemnified Party in obtaining such Tax benefit. Notwithstanding the foregoing, if (x) the amount of Indemnifiable Losses for which the Indemnifying Party is obligated to indemnify the Indemnified Party is reduced by any Tax benefit in accordance with the provisions of the previous sentence and (y) the Indemnified Party subsequently is required to repay the amount of any such Tax benefit or such Tax benefit is disallowed, then the obligation of the Indemnifying Party to indemnify with respect to such amounts shall be reinstated immediately and such amounts shall be paid promptly to the Indemnified Party in accordance with the provisions of this Agreementequal one. (d) No Indemnifying Party shall be liable to an Indemnified Party under this Article VIII in respect of consequential, exemplary, special or punitive damages, or lost profits, except to the extent such consequential, exemplary, special or punitive damages, or lost profits are actually paid to a third party.