Order of Recovery. (a) Buyer will be entitled to payment for any indemnifiable Damages arising under Section 6.1(a) for breaches of Fundamental Representations, subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) first, from the General Indemnification Escrow Portion (to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), (ii) second, by application by Buyer for recovery under the R&W Policy (provided, however, that Buyer shall not be required to seek recovery from the R&W Policy in respect of any Damages that are excluded from coverage pursuant to the terms of the R&W Policy) and (iii) third, directly from the Stockholders; provided, however, Buyer may only seek payment directly from the Stockholders in respect of Damages arising under Section 6.1(a) for breaches of Fundamental Representations to the extent the amount sought exceeds the amounts then available from the Escrow Fund and the amounts actually covered and recoverable under R&W Policy (to the extent coverage is not excluded under the R&W Policy), subject to all applicable limitations and terms set forth in this Agreement, and provided, further, that Buyer has used commercially reasonable efforts to seek recovery of such Damages under the R&W Policy (to the extent coverage is not excluded under the R&W Policy) prior to obtaining indemnification for such Damages directly from the Stockholders pursuant to the foregoing clause (iii) of this Section 6.6(a) (but, for the avoidance of doubt, nothing herein shall prohibit Buyer from (A) delivering a Claim Notice to the Stockholders with respect to such Damages prior to the exercise of such commercially reasonable efforts, and, (B) following the exercise of such commercially reasonable efforts, proceeding with recovery directly against the Stockholders in accordance with this Article VI (even if recovery has not yet been made under the R&W Policy)).
(b) Buyer will be entitled to payment for any indemnifiable Damages arising under Section 6.1(b) (except to the extent set forth in Section 6.6(c)) through Section 6.1(e), subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) first, from the General Indemnification Escrow Portion (to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), and (ii) second, directly from the Stockholders, which shall be paid by the Stockholders.
(c) Buyer ...
Order of Recovery. The Buyer Indemnitees shall recover any Adverse Consequences for which they are entitled to indemnification from Sellers under this ARTICLE 6
(a) first, from the Indemnity Holdback and (b) second, to the extent Buyer Indemnitees have not recovered all such Adverse Consequences pursuant to the foregoing clause (a), the Buyer Indemnitees shall, subject to the other limitations herein, be entitled to recover any remaining amounts in respect of such Adverse Consequences from Sellers.
Order of Recovery. All Damages shall be paid, first, out of the Escrow Funds (based on each Non-Dissenting Equityholder’s Pro Rata Share) until such funds are fully exhausted or reserved for pending claims, and second, by the Non-Dissenting Equityholders, severally (based on each such holder’s Pro Rata Share) and not jointly, but only if the Non-Dissenting Equityholders are obligated to pay for such Damages pursuant to the terms of this Section 9 (including after giving effect to the limitations set forth in Sections 9.1 and 9.3 hereof). The Indemnitees shall be entitled to bring an indemnification claim directly against one or more of the Non-Dissenting Equityholders to recover Damages if and to the extent that (i) the Escrow Fund is no longer available or has been reserved for pending claims and (ii) the Non-Dissenting Equityholders are obligated to pay for such Damages pursuant to the terms of this Section 9, including after giving effect to the limitations set forth in Sections 9.1 and 9.3 hereof; provided, however, that the liability of any Non-Dissenting Equityholder in such case shall be limited to such Non-Dissenting Equityholder’s Pro Rata Share of such Damages.
Order of Recovery. Buyer agrees (including on behalf of each other member of the Buyer Indemnified Group) that the members of the Buyer Indemnified Group shall, with respect to claims under Section 9.1(a)(i)(2) and Section 10.3, (i) first, to the extent the Losses are covered under the R&W Policy, recover against the R&W Policy until the remaining limits thereunder have been exhausted, and (ii) thereafter, recover from Seller (subject, in all instances, to the limitations set forth in this Article IX, including Section 9.1(a)).
Order of Recovery. Purchaser agrees (on behalf of itself and each other member of the Purchaser Indemnified Group) that the members of the Purchaser Indemnified Group shall, with respect to claims under Section 7.2(a)(i), Section 7.2(a)(ii), and/or Section 7.2(a)(iv): (i) first, to the extent the Losses are covered under the R&W Insurance Policy, use commercially reasonable efforts to obtain recovery in respect of such Losses against the R&W Insurance Policy until the remaining limits thereunder have been exhausted or Purchaser, and (ii) second, solely to the extent such Losses exceed the remaining limits thereunder, seek recovery against Sellers (subject, in all instances, to the limitations set forth in this Article VII); provided, however, that the foregoing restrictions shall not apply in the case of Fraud. Notwithstanding anything in this Agreement to the contrary, Xxxxxxxxx agrees (on behalf of itself and each other member of the Purchaser Indemnified Group) that its and their sole and exclusive remedy for breaches of the representations and warranties of Sellers and Company set forth in Article III and Article IV (other than the Company Fundamental Representations and Seller Fundamental Representations) is the R&W Insurance Policy, except in the case of Fraud.
Order of Recovery. 57 9.8 Procedures .................................................................................................... 58 9.9
Order of Recovery. Notwithstanding any other provision in this Agreement to the contrary, any Loss or Losses payable to a Buyer Indemnified Party pursuant to an indemnity claim made under Section 7.2(a) may, at the sole discretion of Buyer, be paid or satisfied in the following order: (i) first, by set off against any amount outstanding under the Seller Note (which Seller Note shall be offset first against any outstanding principal and second against any accrued unpaid interest), and (ii) second, by Sellers in cash by wire transfer of immediately available funds.
Order of Recovery. (i) Except in the case of the Fundamental Representations, Pre-Closing Covenants, Post-Closing Covenants, and fraud and/or as stipulated under Section 6.4, the Indemnitee’s sole and exclusive source of recovery for claims against Seller and its Affiliates under this Agreement will be coverage under the Representation and Warranty Policy. Purchaser expressly waives the right to recover any amount outside of or in excess of the Representation and Warranty Policy for any Loss arising from any breach of any
Order of Recovery. If any Losses are payable to an Indemnified Party as a result of any claim for indemnification under this ARTICLE V (such amount, the “Owed Amount”), then, subject to the limitations set forth in Section 5.2(b), then, unless each Indemnifying Party within ten (10) Business Days following the date such Owed Amount is determined, agrees to pay in cash such Indemnifying Party’s pro rata share of the remaining Owed Amount to such Indemnified Party, (i) first, Buyer shall permanently cancel a number of Restricted Shares with a value equal to (x) the Owed Amount divided by (y) the Closing Issue Price, rounded to the nearest share, and (ii) second, if the remaining Restricted Shares are insufficient to cover the full Owed Amount, or if the Restricted Shares had been previously permanently canceled by Buyer or released to the Indemnifying Parties, then, each Indemnifying Party shall, within ten (10) Business Days following the date such Owed Amount is determined, agreed or deemed agreed to be owed, pay in cash such Indemnifying Party’s pro rata share of the remaining Owed Amount to such Indemnified Party.
Order of Recovery. Except in the case of fraud, with respect to Losses owed by the Sellers in respect of Claims under Section 15.3(a)(i), the order of recovery shall be as follows:
(i) first, the Indemnified Purchaser Parties will first use commercially reasonable efforts to recover any amounts owed by Sellers from the R&W Insurance Policy;
(ii) second, to the extent such Losses (A) exceed the Indemnity Threshold and the Indemnity Deductible (if applicable), and (B) are not covered by the R&W Insurance Policy for any reason (including the coverage limit being exceeded and coverage being denied), from the Indemnity Escrow Fund; and
(iii) third, to the extent such Losses (A) exceed the Indemnity Threshold and the Indemnity Deductible (if applicable), (B) are not covered by the R&W Insurance Policy for any reason (including the coverage limit being exceeded and coverage being denied), and (C) exceed the balance of the Indemnity Escrow Fund, directly from Sellers.
