Determination of Losses. All Losses subject to indemnification pursuant to this Article IX or the [***] shall be calculated net of the amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article IX, the Indemnified Party shall promptly remit to the applicable Indemnifying Party the excess of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of the Loss.
Determination of Losses. All indemnification payments under this §8 shall be paid by the Indemnifying Party net of any Tax benefits and insurance coverage that may be available to the Indemnified Party.
Determination of Losses. A certificate or determination notice of the Lender, as to any of the matters referred to in this Clause 11 shall, absent manifest error, be conclusive and binding on the Borrower.
Determination of Losses. Plant fuel, flared gas and other uses or losses incident to processing: The volume of gas which is attributable to such uses or losses shall be as determined by the measurement with meters of each such use occurring in the Plant as may be necessary to determine accurately the total volume of gas so used, such meters to be installed and operated as mutually agreed by Plant Owners and Southern.
Determination of Losses. The parties shall take into account any net Tax benefits actually realized by the Indemnified Party as of the time that the indemnity payment is made as a result of the incurrence of Losses giving rise to indemnity. In computing the amount of any such Tax benefit, the parties shall take account of any Tax costs to the Indemnified Party as a result of the receipt of the indemnity payment and 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 Losses. In addition, the amount of Losses incurred by any Indemnified Party hereunder will be determined net of any insurance proceeds actually received by the Indemnified Party under any policies of insurance covering the Loss giving rise to the applicable claim. The Indemnified Parties shall use commercially reasonable efforts to make an insurance claim under any relevant policies of insurance covering the loss but shall not be obligated to institute legal proceedings to enforce coverage of any such claim. Furthermore, any amounts received pursuant to making an insurance claim shall be offset by any Loss related to making such claim, including the payment of any deductible and any increases in premium payments that can be shown to be directly attributable to having made such claim, and the Loss shall be increased by the amount, if any, by which the Losses related to making such claim exceed the insurance proceeding actually received.
Determination of Losses. The parties shall take into account the time value of money (using the Applicable Rate as the discount rate) in determining Losses for purposes of this Article XI.
Determination of Losses. A certificate or determination notice of any affected Bank(s) or the Agent, as the case may be, as to any matters referred to in this Clause 2 shall, absent in manifest error, be conclusive and binding on the Obligors.
Determination of Losses. In determining the amount of any Losses for which a Buyer Indemnified Party is entitled to assert a claim for indemnification hereunder, the amount of any such Losses shall be determined after deducting therefrom the amount of any insurance proceeds (after giving effect to any applicable deductible or retention) and other third party recoveries actually received by the Buyer Indemnified Parties or the Company Entities in respect of such Losses (which proceeds and recoveries the Buyer agrees to use commercially reasonable efforts to obtain) and the amount of any Tax Benefit related thereto. If an indemnification payment is received by a Buyer Indemnified Party, and any Buyer Indemnified Party or the Company Entities later realizes or receives insurance proceeds, other third party recoveries or Tax Benefits in respect of the related Losses, the Buyer shall promptly pay to the Seller a sum equal to the lesser of (a) the actual amount of such insurance proceeds, other third party recoveries and Tax Benefits or (b) the actual amount of the indemnification payment previously paid by the Seller with respect to such Losses. All parties shall use commercially reasonable efforts to mitigate the amount of Losses for which they may be entitled to indemnification hereunder. As used herein, “Tax Benefit” means any actual reduction of Taxes payable by the Buyer, the Company Entities or any of their respective Affiliates as a result of a Loss, assuming for purposes of such calculation that any deduction, loss or other Tax attribute generated by such Loss is the last such deduction, loss or other Tax attribute on any Tax Return.
Determination of Losses. (a) The Losses giving rise to any indemnification Obligation hereunder shall be reduced by any insurance proceeds actually received by the Indemnified Party as a result of the events giving rise to the claim for indemnification, net of any expenses related to the receipt of such proceeds, including retrospective premium adjustments, if any. The amount of the indemnity payment shall be computed by taking into account the timing of the loss or payment, as applicable, at the Applicable Rate from the date the Indemnified Party provides notice of the Loss to the Indemnifying Party until the date paid. Upon the request of the Indemnifying Party, the Indemnified Party shall provide the Indemnifying Party with information sufficient to allow the Indemnifying Party to calculate the amount of the indemnity payment in accordance with this Section 5.05.
Determination of Losses. A certificate or deter- mination notice of the Agent, as to any of the matters referred to in this Clause 11 shall, absent manifest error, be conclusive and binding on the Borrowers.
