Indemnification Priority. The Company hereby acknowledges and agrees that any of the Persons entitled to indemnification pursuant to Section 3.9.1 (each, a “Company Indemnitee” and collectively, the “Company Indemnitees”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by other sources. The Company hereby acknowledges and agrees (i) that it is the indemnitor of first resort (i.e., its obligations to a Company Indemnitee are primary and any obligation of such other sources to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Company Indemnitee are secondary) and (ii) that it shall be required to advance the full amount of expenses incurred by a Company Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement without regard to any rights a Company Indemnitee may have against such other sources. The Company further agrees that no advancement or payment by such other sources on behalf of a Company Indemnitee with respect to any claim for which such Company Indemnitee has sought indemnification, advancement of expenses or insurance from the Company shall affect the foregoing, and that such other sources shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Company Indemnitee against the Company.
Indemnification Priority. The Company hereby acknowledges that, in addition to the rights provided to each Nominee Director serving on the Board or other indemnified person covered by any such indemnity insurance policy (any such Person, an “Indemnitee”) or any indemnification agreement that such Indemnitee may enter into with the Company from time to time (the “Indemnification Agreements”), the Indemnitees may have certain rights to indemnification, advancement of expenses and/or insurance provided by one or more of their respective Affiliates (collectively, the “Secondary Indemnitors”). Notwithstanding anything to the contrary in any of the Indemnification Agreements, the Company hereby agrees that, to the fullest extent available under applicable Law and subject to section 232 of the Act, with respect to its indemnification and advancement obligations to the Indemnitees under the Indemnification Agreements, this Agreement or otherwise, the Company (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify the Indemnitees are primary and any obligation of the Secondary Indemnitors or their insurers to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any of the Indemnitees is secondary and excess), and (ii) shall be required to advance the full amount of expenses incurred by each Indemnitee, without regard to any rights such Indemnitees may have against the Secondary Indemnitors or their insurers; provided that such Indemnitee shall have delivered to the Company an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses. The Company agrees that any Secondary Indemnitor or insurer thereof not a party hereto shall be an express third party beneficiary of this Section 2.5, able to enforce such clause according to its terms as if it were a party hereto. Nothing contained in the Indemnification Agreements is intended to limit the scope of this Section 2.5 or the other terms set forth in this Agreement or the rights of the Secondary Indemnitors or their insurers hereunder.
Indemnification Priority. The Company acknowledges and agrees that the Company shall be fully and primarily responsible for the payment of all Indemnified Liabilities to each Indemnitee, howsoever such right to indemnification or advancement from the Company arises, without regard to (i) any right of recovery the Indemnitee may have from a third party or (ii) any right to insurance coverage that the Indemnitee may have under any insurance policy. Under no circumstance shall the Company be entitled to any right of subrogation, reimbursement, exoneration, indemnification or contribution from any such third party or insurance carrier pursuant to any right of indemnification that the Indemnitee may have under any contract, insurance policy or otherwise, and the Company shall not have any right to participate in any claim or remedy of the Indemnitee in respect thereof. No right of indemnification, reimbursement, advancement of expenses or insurance coverage or any other right of recovery the Indemnitee may have from any third party or insurance carrier shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Company under Section 7.8. The Company hereby unconditionally and irrevocably waives, relinquishes and releases, and covenants and agrees not to exercise any rights that it may now have or hereafter acquire against any Indemnitee that arises from or relates to the existence, payment, performance or enforcement of the Company’s obligations under this Agreement or under any other indemnification agreement (whether pursuant to contract, by-laws or charter), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Indemnitee against any third party or insurance carrier, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right.
Indemnification Priority. The Partnership hereby acknowledges that the rights to indemnification, advancement of expenses and/or insurance provided pursuant to this Section 13.1 may also be provided to certain Indemnified Persons by one or more of their respective Affiliates (other than TMHC, the General Partner or any direct or indirect Subsidiaries of the Partnership) or their insurers (collectively, the “Affiliate Indemnitors”). The Partnership and TMHC hereby agree that, as between the Partnership and TMHC on the one hand, and the Affiliate Indemnitors on the other (i) the Partnership and TMHC are jointly and severally the full indemnitors of first resort and the Affiliate Indemnitors are the full indemnitors of second resort with respect to all such indemnifiable claims against such Indemnified Persons, whether arising under this Agreement or otherwise (i.e., the obligations of the Partnership and TMHC to such Indemnified Persons are primary and any obligation of the Affiliate Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Indemnified Persons are secondary), (ii) the Partnership and TMHC shall be jointly and severally required to advance the full amount of expenses incurred by such Indemnified Persons and shall be jointly and severally liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement (or any other agreement between the Partnership or TMHC and such Indemnified Persons), without regard to any rights such Indemnified Persons may have against the Affiliate Indemnitors, and (iii) the Partnership and TMHC irrevocably waive, relinquish and release the Affiliate Indemnitors from any and all claims against the Affiliate Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Partnership and TMHC agree to indemnify the Affiliate Indemnitors directly for any amounts that the Affiliate Indemnitors pay as indemnification or advancement on behalf of any such Indemnified Person and for which such Indemnified Person may be entitled to indemnification from the Partnership or TMHC in connection with serving as a director or officer (or equivalent titles) of TMHC, the Partnership or their respective Subsidiaries. The Partnership and TMHC further agree that no advancement or payment by the Affiliate Indemnitors on behalf of any such Indemnified Person wit...
Indemnification Priority. 37 6.7 Insurance............................................................................................................... 38 6.8 Savings Clause...................................................................................................... 38 6.9 Acquisition Agreement......................................................................................... 38 6.10 Third Party Beneficiaries...................................................................................... 39
Indemnification Priority. Each of Parent, Intermediate and the Company hereby acknowledges and agrees that the Group Companies and their subsidiaries are the indemnitors of first resort and that the obligations of the Group Companies to the Indemnitees under this Agreement are primary and that any obligations of the Managers to provide advancement or indemnification for the same Indemnified Liabilities (including all interest, assessments and other charges paid or payable in connection with or in respect of such Indemnified Liabilities) incurred by the Indemnitees, whether pursuant to any agreement, any Organizational Document of the Group Companies or any Manager or otherwise, are secondary. If any Manager pays or causes to be paid to or on behalf of an Indemnitee, and for any reason, any amounts otherwise indemnifiable hereunder (whether pursuant to any other contract or any Organizational Document), then (i) such Manager shall be fully subrogated to, or otherwise succeed to, all rights of such Indemnitee hereunder with respect to such payment and (ii) the Group Companies shall jointly and severally reimburse, indemnify and hold harmless such Manager for all such payments actually made by such Manager on behalf of, or for the benefit of, such Indemnitee.
Indemnification Priority. Notwithstanding anything to the contrary in the Indemnification Agreement, the Company hereby agrees that (i) it is the indemnitor of first resort under the Indemnification Agreement, this letter agreement and any other agreement or undertaking (whether pursuant to contract, bylaws or charter) by the Company pursuant to which the Bain Director may assert a claim for indemnification or advancement; (ii) that the Company’s obligations to the Bain Director under the Indemnification Agreement, this letter agreement or any other agreement or undertaking (whether pursuant to contract, bylaws or charter) to provide advancement and/or indemnification to the Bain Director are primary, and that any obligation of any Related Stockholder to provide advancement or indemnification (whether pursuant to contract, bylaws or charter) are secondary; and (iii) any obligation of any insurer of any Related Stockholder to provide insurance coverage for any amounts indemnifiable or otherwise covered by the Indemnification Agreement, this letter agreement or any other agreement or undertaking (whether pursuant to contract, bylaws or charter) by the Company to provide advancement and/or indemnification to the Bain Director is secondary to those advancement and indemnification obligations. The Company hereby further agrees that if any Related Stockholder pays or causes to be paid, for any reason, any amounts otherwise properly indemnified or advanced under the Indemnification Agreement or under any other agreement or undertaking (whether pursuant to contract, bylaws or
Indemnification Priority. (A) The Company hereby acknowledges that the rights to indemnification and advancement of expenses provided pursuant to (x) provided pursuant to this Section 11.02, (y) the organizational documents of PubCo, the Company or any of their respective Subsidiaries or (z) any other agreement between the Indemnified Person, on the one hand, and PubCo, the Company or any of their respective Subsidiaries, on the other (collectively, the sources of indemnification and advancement of expenses described in clauses (x), (y) and (z), together with any insurance maintained by PubCo, the Company or their respective Subsidiaries for the benefit of Indemnified Persons, the “Indemnification Sources”) may also be provided to certain Indemnified Persons by one or more of their respective Affiliates (other than PubCo, the Company and their respective Subsidiaries) or their insurers (collectively, and including, in the case of the GGC Member and the BSMH Member, the GGC Member, the BSMH Member, GGC and BSMH and, to the extent applicable, each of their respective partners, shareholders, members, Affiliates, associated investment funds, general partners, directors, officers, fiduciaries, managers, controlling Persons, employees and agents and, to the extent applicable, each of the partners, shareholders, members, Affiliates, associated investment funds, directors, officers, fiduciaries, managers, controlling Persons, employees, insurers and agents of each of the foregoing, the “Affiliate Indemnitors” ). The Company hereby agrees that (1) as between the Indemnification Sources, on the one hand, and the Affiliate Indemnitors, on the other hand, the Indemnification Sources shall be fully and primarily responsible for any Claim indemnifiable by the Indemnification Sources, regardless of the availability of recovery from any Affiliate Indemnitor, and the obligations of any Affiliate Indemnitor with respect to any such Claim shall be secondary, and (2) the Company irrevocably waives, relinquishes and releases and shall cause the other Indemnification Sources to irrevocably waive, relinquish and release the Affiliate Indemnitors from any and all claims against the Affiliate Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Affiliate Indemnitors on behalf of any such Indemnified Person with respect to any claim for which such Indemnified Person has sought indemnification from the...
Indemnification Priority. If a Buyer Indemnified Person has indemnification claims for Losses under this Article X arising from a breach of a representation or warranty that is insured under the R&W Policy, then such Buyer Indemnified Person shall seek recovery with respect to such claims as follows: (a) first, until the retention is met under the R&W Policy, such Buyer Indemnified Person shall pursue recovery from the Indemnification Escrow Account (to the extent such Losses exceed the Deductible); (b) second, after the applicable retention under the R&W Policy has been satisfied, such Buyer Indemnified Person shall pursue recovery by making and pursuing such claim under the R&W Policy; and (c) third, 74163855_1 if (i) the claim is for a breach of a Company Fundamental Representation and (ii) such Buyer Indemnified Person has made a valid and timely claim under the R&W Policy and the insurer providing coverage under the R&W Policy has indicated to such Buyer Indemnified Person in writing (after reasonable pursuit by such Buyer Indemnified Person of such claim under the R&W Policy) that the claim will not be paid or payment under the R&W Policy has been exhausted, then such Buyer Indemnified Person shall be entitled to pursue recovery of any remaining Losses directly from the Company Securityholders, subject to the provisions and limitations set forth in this Agreement.
Indemnification Priority. The Company hereby acknowledges and agrees that any of the Persons entitled to indemnification pursuant to Section 3.9(a) may have certain rights to indemnification, advancement of expenses or insurance provided by other sources. The Company hereby acknowledges and agrees that (i) it is the indemnitor of first resort (i.e., its obligations to any such indemnified party are primary and any obligation of such other sources to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such indemnified party are secondary) and (ii) it shall be required to advance the full amount of expenses incurred by any such indemnified party and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement without regard to any rights such indemnified party may have against such other sources. The Company further agrees that no advancement or payment by such other sources on behalf of any such indemnified party with respect to any claim for which such indemnified party has sought indemnification, advancement of expenses or insurance from the Company shall affect the foregoing, and that such other sources shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such indemnified against the Company.
