Determination of Loss Amount. (a) The amount of any Loss subject to indemnification under Section 7.02 or Section 7.03 shall be calculated net of (i) any Tax Benefit actually realized by the Indemnitee or any of their Affiliates on account of such Loss and (ii) any insurance proceeds (net of direct collection expenses) or any indemnity, contribution or other similar payment received by the Indemnitee from any third party with respect thereto. If the Indemnitee or its Affiliates actually realizes a Tax Benefit after an indemnification payment is made to it but prior to the date that is four years after the later of (x) the Closing Date and (y) the date the Loss was suffered or incurred, the Indemnitee shall promptly pay to the Indemnitor the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. Additionally, if, in connection with the settlement of an audit, examination or similar proceeding, a Governmental Authority adjusts any Tax Benefit after such payment is made to the Indemnitor but prior to the date that is four years after the later of (x) the Closing Date and (y) the date the Loss was suffered or incurred, the Indemnitor shall promptly pay to the Indemnitee the amount of such adjustment (but not in excess of the amount of any such Tax Benefit so adjusted) after the Indemnitee provides notice of such settlement of such adjustment with the Governmental Authority (together with any supporting work papers, schedules and documents). For purposes hereof, “Tax Benefit” means the Tax savings actually realized by an Indemnitee or its Affiliates that is attributable to any deduction, loss, or credit, resulting from or arising out of a Loss, calculated by computing the amount of Taxes before and after inclusion of any such Tax deduction, loss or credit (treating such items of Tax deduction, loss or credit as the last items claimed), and any such Tax savings shall be treated as actually realized upon the filing the Tax Return reflecting such Tax savings. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of direct collection expe...
Determination of Loss Amount. 9.8.1. The amount of any and all Losses under this Article 9 will be determined net of (i) the net present value of any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights.
9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision.
9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statements.
Determination of Loss Amount. (a) The amount of any and all Losses under this Article 9 will be determined net of any amounts recovered by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, to the underlying claim).
(i) For purposes of calculating Losses to which a Buyer Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) with respect to such Losses (net of any costs of recovery);
(ii) for purposes of calculating Losses to which Seller Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) with respect to such Losses (net of any costs of recovery).
(c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Aggregate Closing Cash Consideration pursuant to Section 1.02; (ii) was reserved for in the Financial Statements; (iii) is included in the Closing Statement; or (iv) is set forth on the disclosure schedules to this Agreement.
(d) For purposes of determining failure of any representations or warranties to be true and correct, the breach of any covenants and agreements, and calculating the amount of Losses to which any Person is entitled to be indemnif...
Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 7.2 shall be calculated net of (a) any tax benefit that a Company Indemnified Party actually realizes on account of such Loss (but only to the extent such benefit is actually realized by such party on or before the end of the taxable year in which such indemnity payment is made) and (b) any insurance proceeds (net of direct collection expenses) or any indemnity, contribution or other similar payment actually received by the Company Indemnified Party from any third party with respect thereto. The Company Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Company Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (less any costs or expenses to obtain such recovery) shall be made promptly to the Investor. The Investor shall be subrogated to all rights of the Indemnified Parties and their Affiliates in respect of any Losses indemnified by the Investor. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no right to indemnification hereunder with respect to any Loss or alleged Loss to the extent the amount of such Loss or alleged Loss is included in the calculation of Manager Shutdown Liabilities.
Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 10.01(b) shall be calculated net of any insurance proceeds actually received in cash by the Indemnified Person on account of such Loss and paid within ninety (90) days of the submission of a claim relating thereto, net of the present value of any reasonably probable increase in insurance premiums or other charges paid or to be paid by the Indemnified Person resulting from such Loss and all costs and expenses incurred by any Indemnified Person in recovering such proceeds from its insurers. The Indemnified Person shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder, provided, however, that, for the avoidance of doubt, in no event shall Indemnified Person be required to bring an action against the provider of any such insurance policies for such recovery. In the event that an insurance recovery is received by any Indemnified Person with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Person or Persons that provided such indemnity payments to such Indemnified Person.
Determination of Loss Amount. If an indemnifiable matter is identified and noticed prior to the end of any applicable period set forth in Section 10.1, all Losses incurred or paid in connection with such matter shall remain subject to indemnification hereunder.
Determination of Loss Amount. No Person shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder more than once in respect of any one Loss or related group of Losses.
Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 8.02 or Section 8.03 shall be calculated net of any insurance proceeds received or receivable by the Indemnitee on account of such Loss. The Indemnitee shall seek full recovery under all insurance policies covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is received by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Person or Persons that provided such indemnity payments to such Indemnitee.
Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or Section 9.03 shall be calculated net of (i) any Tax Benefit inuring to the Indemnitee on account of such Loss, (ii) any reserves set forth in the Financial Statements and/or Closing Statement relating to such Loss and (iii) any insurance proceeds or other amounts under indemnification agreements received by the Indemnitee on account of such Loss. If the Indemnitee receives a Tax Benefit on account of such Loss after an indemnification
Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 8.02 or 8.03 shall be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment recovered by the Indemnitee from any third party with respect thereto (less any costs incurred in connection with enforcing the right to or obtaining such proceeds or similar payment). The Indemnitee shall seek full recovery under all insurance policies covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the lesser of (x) any indemnification payment that has been made in respect of such Loss hereunder and (y) the aggregate amount of the recovery (net in each case of any costs incurred in connection with enforcing the right to or obtaining such recovery) shall be made promptly to the Indemnitor. Purchaser shall not be entitled to indemnification under Section 8.02 for the amount of any Loss (i) to the extent of any provision or reserve established in respect of the specific matters giving rise to such Loss that has been made in the Financial Statements or (ii) to the extent the matter giving rise to such indemnification claim was disputed and resolved and such amount of such Loss was used in the calculation of the Final Cash Consideration pursuant to Section 1.04.
