Common use of Order of Recovery Clause in Contracts

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 will be entitled to payment for any indemnifiable Damages arising under Section 6.1(b) (solely in relation to Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and any Damages incurred by Buyer in connection with a Buyer Remediation Assumption), subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) first, from the Environmental Indemnification Escrow Portion (to the extent available amounts of the Environmental Indemnification Escrow Portion remain in the Escrow Account), (ii) second, from the General Indemnification Escrow Portion (to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), and (iii) third, directly from the Stockholders, which shall be paid by the Stockholders. For the avoidance of doubt, subject to the release terms set forth in Section 6.8(b) below, the sole permitted use of the Environmental Indemnification Escrow Portion is to pay indemnifiable Damages arising under Section 6.1(b) solely in relation to (i) Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and (ii) any Damages incurred by Buyer in connection with a Buyer Remediation Assumption.

Order of Recovery. (a) Buyer will be entitled Subject to payment for any indemnifiable Damages arising under Section 6.1(a) for breaches of Fundamental Representations, subject to all applicable the limitations and terms set forth in this AgreementARTICLE VI, only as followsLosses shall be recoverable: (i) With respect to any claim for indemnification by the Buyer Indemnitees under this ARTICLE VI (other than Fundamental Claims and IP Claims): (A) first, for all amounts above the Basket Amount, from the Indemnity Escrow Account, until the depletion, or reservation for outstanding claims, of all amounts then held therein, and (B) thereafter, against the R&W Insurance Policy in accordance with the procedures, and subject to the terms set forth, therein. (ii) With respect to any claim for indemnification by the Buyer Indemnitees under this ARTICLE VI with respect to IP Claims: (iA) first, for all amounts above the Basket Amount, from the Indemnity Escrow Account, until the depletion, or reservation for outstanding claims, of all amounts then held therein, (B) next, if and to the extent covered by the terms of the R&W Insurance Policy, from the R&W Insurance Policy in accordance with the procedures, and subject to the terms set forth, therein, and (C) finally, if the amounts recovered in accordance with clauses (A) and (B) of this Section 6.2(e)(ii) are insufficient to cover Losses, from the Seller in accordance with this ARTICLE VI up to the IP Cap. (iii) With respect to any claim for indemnification by the Indemnitees under this ARTICLE VI with respect to Fundamental Claims other than an Agreed Indemnity Event: (A) first, from the General Indemnification Indemnity Escrow Portion Account, until the depletion, or reservation for outstanding claims, of all amounts then held therein, (B) next, if and to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), (ii) second, covered 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 Insurance Policy, from the R&W Insurance Policy in accordance with the procedures, and subject to the terms set forth, therein, and (C) finally, if the amounts recovered in accordance with clauses (A) 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 (iiiB) of this Section 6.6(a6.2(e)(iii) (butare insufficient to cover Losses, for from 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 Seller Indemnifying Parties in accordance with this Article ARTICLE VI (even if recovery has not yet been made under up to the R&W Policy))Purchase Price Cap. (biv) Buyer will be entitled With respect to payment any claim for any indemnifiable Damages arising indemnification by the Indemnitees under Section 6.1(b) (except this ARTICLE VI with respect 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 followsan Agreed Indemnity Event: (iA) first, from the General Indemnification Escrow Portion (to the extent available amounts of the General Indemnification Escrow Portion remain in the Indemnity Escrow Account), until the depletion, or reservation for outstanding claims, of all amounts then held therein, and (iiB) secondthereafter, directly from if the Stockholders, which shall be paid by the Stockholders. amounts recovered in accordance with clause (cA) Buyer will be entitled of this Section 6.2(e)(iv) are insufficient to payment for any indemnifiable Damages arising under Section 6.1(b) (solely in relation to Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and any Damages incurred by Buyer in connection with a Buyer Remediation Assumption), subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) firstcover Losses, from the Environmental Indemnification Escrow Portion (to the extent available amounts of the Environmental Indemnification Escrow Portion remain in the Escrow Account), (ii) second, Seller Indemnifying Parties as a setoff from the General Indemnification Escrow Portion (to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), and (iii) third, directly from the Stockholders, which shall be paid by the Stockholders. For the avoidance of doubt, subject to the release terms set forth in Section 6.8(b) below, the sole permitted use of the Environmental Indemnification Escrow Portion is to pay indemnifiable Damages arising under Section 6.1(b) solely in relation to (i) Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and (ii) any Damages incurred by Buyer in connection with a Buyer Remediation AssumptionFirst Payment Consideration Amount.

Order of Recovery. (a) Buyer will be entitled Subject to payment for any indemnifiable Damages arising under Section 6.1(a) for breaches of Fundamental Representations, subject to all applicable the limitations and terms set forth in this AgreementArticle 9, only as follows: Indemnifiable Damages shall be recoverable: (i) With respect to any claim for indemnification under Section 9.2(a)(i) or (ii) (other than Fundamental Claims and FCPA Claims): (A) first, from the General Indemnification Indemnity Escrow Portion Fund until the depletion, or reservation for outstanding claims, of all amounts then held therein and (B) thereafter, against the R&W Insurance Policy in accordance with the procedures, and subject to the terms set forth, therein. (ii) With respect to Fundamental Claims and FCPA Claims, (A) first from the Indemnity Escrow Fund until the depletion, or reservation for outstanding claims, of all amounts then held therein, (B) if and to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), (ii) second, covered 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 Insurance Policy, thereafter against the R&W Insurance Policy in accordance with the procedures and subject to the terms set forth therein, and (C) finally, if the amounts recovered in accordance with clauses (A) 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 (iiiB) of this Section 6.6(a9.2(b)(ii) (butare insufficient to cover Indemnifiable Damages, for then from 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 Indemnifying Parties in accordance with this Article VI (even if recovery has not yet been made under the R&W Policy))9. (biii) Buyer will be entitled to payment for any indemnifiable Damages arising under Section 6.1(b) (except Notwithstanding anything to the extent set forth in Section 6.6(c)) through Section 6.1(e)contrary contained herein, subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) first, the amounts that an Indemnified Person recovers from the General Indemnification Indemnity Escrow Portion (Fund pursuant to Fundamental Claims or FCPA Claims shall not reduce the extent available amounts amount that an Indemnified Person may recover with respect to claims that are not Fundamental Claims or and FCPA Claims. By way of illustration and not limitation, assuming there are no other claims for indemnification, compensation or reimbursement, in the event that Indemnifiable Damages resulting from a Fundamental Claim or a FCPA Claim are first satisfied from the Indemnity Escrow Fund and such recovery fully depletes the Indemnity Escrow Fund, the maximum amount recoverable by an Indemnified Person pursuant to a subsequent claim that is not a Fundamental Claim or a FCPA Claim shall continue to be the full dollar value of the General Indemnification Indemnity Escrow Portion remain in the Escrow Account), and (ii) second, directly from the Stockholders, which shall be paid by the Stockholders. (c) Buyer will be entitled to payment for any indemnifiable Damages arising under Section 6.1(b) (solely in relation to Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and any Damages incurred by Buyer in connection with a Buyer Remediation Assumption), subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) first, from the Environmental Indemnification Escrow Portion (to the extent available amounts Fund irrespective of the Environmental Indemnification fact that the Indemnity Escrow Portion remain in Fund was used to satisfy such Fundamental Claim or FCPA Claims, such that the Escrow Account), (ii) second, from amount recoverable for such two claims would be the General Indemnification Escrow Portion (to the extent available amounts same regardless of the General Indemnification Escrow Portion remain chronological order in the Escrow Account), and (iii) third, directly from the Stockholders, which shall be paid by the Stockholders. For the avoidance of doubt, subject to the release terms set forth in Section 6.8(b) below, the sole permitted use of the Environmental Indemnification Escrow Portion is to pay indemnifiable Damages arising under Section 6.1(b) solely in relation to (i) Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and (ii) any Damages incurred by Buyer in connection with a Buyer Remediation Assumptionthey were made.

Order of Recovery. (a) Buyer will be entitled Subject to payment for any indemnifiable Damages arising under Section 6.1(a) for breaches of Fundamental Representations, subject to all applicable the limitations and terms set forth in this AgreementARTICLE 9, only as follows: Indemnifiable Damages shall be recoverable: 1. With respect to any claim for indemnification under Section 9.2(a)(i), (iii) or (v) (other than Fundamental Claims): (A) first, from the General Indemnification Indemnity Escrow Portion Fund until the depletion, or reservation for outstanding claims, of all amounts then held therein, and (B) thereafter, against the R&W Insurance Policy in accordance with the procedures, and subject to the terms set forth, therein. 2. With respect to Fundamental Claims, (A) first from the Indemnity Escrow Fund until the depletion, or reservation for outstanding claims, of all amounts then held therein, (B) thereafter if and to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), (ii) second, covered 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) Insurance Policy following Acquirer’s 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 Indemnified Person’s commercially reasonable efforts to seek recovery of such Damages under recover from the R&W Policy (to the extent coverage is not excluded under Insurance Policy, from the R&W Insurance Policy, and (C) prior to obtaining indemnification for such Damages directly from finally, if the Stockholders pursuant to the foregoing clause amounts recovered in accordance with clauses (iiiA) and (B) of this Section 6.6(a9.1(b)(ii) (butare insufficient to cover Indemnifiable Damages, for then from 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 Indemnifying Parties in accordance with this Article VI (even if recovery has ARTICLE 9. 3. Notwithstanding anything to the contrary contained herein, the amounts that an Indemnified Person recovers from the Indemnity Escrow Fund pursuant to Fundamental Claims shall not yet been made under reduce the amount that an Indemnified Person may recover from the R&W Policy)). (b) Buyer will be entitled Insurance Policy with respect to payment claims that are not Fundamental Claims. By way of illustration and not limitation, assuming there are no other claims for any indemnifiable indemnification, compensation or reimbursement, in the event that 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, resulting from a Fundamental Claim are first satisfied from the General Indemnification Indemnity Escrow Portion (Fund and such recovery fully depletes the Indemnity Escrow Fund, the maximum amount recoverable by an Indemnified Person from the R&W Insurance Policy pursuant to a subsequent claim that is not a Fundamental Claim shall continue to be the extent available amounts full dollar value of the General Indemnification Indemnity Escrow Portion remain in the Escrow Account), and (ii) second, directly from the Stockholders, which shall be paid by the Stockholders. (c) Buyer will be entitled to payment for any indemnifiable Damages arising under Section 6.1(b) (solely in relation to Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and any Damages incurred by Buyer in connection with a Buyer Remediation Assumption), subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) first, from the Environmental Indemnification Escrow Portion (to the extent available amounts Fund irrespective of the Environmental Indemnification fact that the Indemnity Escrow Portion remain in Fund was used to satisfy such Fundamental Claim, such that the Escrow Account), (ii) second, from amount recoverable for such two claims would be the General Indemnification Escrow Portion (to the extent available amounts same regardless of the General Indemnification Escrow Portion remain chronological order in the Escrow Account), and (iii) third, directly from the Stockholders, which shall be paid by the Stockholders. For the avoidance of doubt, subject to the release terms set forth in Section 6.8(b) below, the sole permitted use of the Environmental Indemnification Escrow Portion is to pay indemnifiable Damages arising under Section 6.1(b) solely in relation to (i) Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and (ii) any Damages incurred by Buyer in connection with a Buyer Remediation Assumptionthey were made.

Order of Recovery. Notwithstanding anything in this Agreement to the contrary, but subject to the limitations set forth in this Article IX, except in the case of fraud, any claim for indemnification by the Buyer Indemnitees shall be recovered in the following orders of priority: (a) any Losses claimed by Buyer will Indemnitees pursuant to Section 9.3(a) other than breaches of the Fundamental Reps, the Tax Rep and claims of fraud shall: (i) 57 first, be entitled to payment for any indemnifiable Damages arising applied against the Indemnification Basket, and shall not be recoverable, unless and until the aggregate amount of Losses sustained by the indemnified party under Section 6.1(a9.3(a) exceeds the Indemnification Basket, and then only to the extent of such excess and (ii) second, be recoverable from the R&W Policy in accordance with the terms and subject to the limitations set forth therein, which shall be the sole recourse for all breaches of representations and warranties of Seller (other than the Fundamental Reps, the Tax Rep and claims for fraud); (b) any Losses claimed by Buyer Indemnitees pursuant to Section 9.3(a) for breaches of the Fundamental Representations, subject to all applicable limitations and terms set forth in this Agreement, only as followsReps shall: (i) first, be recoverable from the General Indemnification Adjustment Escrow Portion Fund (to the extent available amounts then available) in an amount equal to the difference between (A) the Indemnification Basket less (B) the total Losses already applied to the Indemnification Basket pursuant to Sections 9.7(a), 9.7(c) or 9.7(e) at the time of the General Indemnification Escrow Portion remain in the Escrow Account)recovery, (ii) second, by application by Buyer be recoverable from the R&W Policy in accordance with the terms and subject to the limitations set forth therein, (iii) third, be recoverable from the Adjustment Escrow Fund (to the extent then available), and (iv) finally, be recoverable directly from Seller solely for recovery Losses resulting therefrom that are in excess of the amounts then remaining in the Adjustment Escrow Fund, together with the amounts recovered under the R&W Policy limit; (providedc) any Losses claimed by Buyer Indemnitees pursuant to Section 9.3(a) for breaches of the Tax Rep shall: (i) first, howeverbe applied against the Indemnification Basket, that Buyer and shall not be required recoverable, unless and until the aggregate amount of Losses sustained by the indemnified party under Section 9.3(a) exceeds the Indemnification Basket, and then only to seek recovery the extent of such excess, (ii) second, be recoverable from the R&W Policy in accordance with the terms and subject to the limitations set forth therein, (iii) third, be recoverable from the Adjustment Escrow Fund (to the extent then available), and (iv) finally, be recoverable directly from Seller solely for Losses resulting therefrom that are in excess of the amounts then remaining in the Adjustment Escrow Fund, together with the amounts recovered under the R&W Policy limit; (d) any Losses claimed by Buyer Indemnitees pursuant to Sections 9.3(b), 9.3(c) and 9.3(d) shall be recoverable first, from the Adjustment Escrow Fund (to the extent then available) and second, from Seller directly, but subject to the limitations in Section 9.6; and (e) any Losses claimed by Buyer Indemnitees pursuant to Section 9.3(e) shall: (i) first, be recoverable from the Adjustment Escrow Fund (to the extent then available) in an amount equal to the difference between (A) the Indemnification Basket less (B) the total Losses already applied to the Indemnification Basket pursuant to Sections 9.7(a), 9.7(b) or 9.7(c) at the time of recovery, (ii) second, be recoverable from the R&W Policy in accordance with the terms and subject to the limitations set forth therein in respect of the Specified Matter, (iii) third, be recoverable from the Adjustment Escrow Fund (to the extent then available), and (iv) finally, be recoverable directly from Seller solely for Losses resulting therefrom that are in excess of the amounts then remaining in the Adjustment Escrow Fund, together with the amounts recovered under 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 will be entitled to payment for any indemnifiable Damages arising under Section 6.1(b) (solely in relation to Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and any Damages incurred by Buyer in connection with a Buyer Remediation Assumption), subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) first, from the Environmental Indemnification Escrow Portion (to the extent available amounts of the Environmental Indemnification Escrow Portion remain in the Escrow Account), (ii) second, from the General Indemnification Escrow Portion (to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), and (iii) third, directly from the Stockholders, which shall be paid by the StockholdersSpecified Matter. For the avoidance of doubt, subject to the release terms set forth in Section 6.8(b) below, the sole permitted use of the Environmental Indemnification Escrow Portion is to pay indemnifiable Damages arising under Section 6.1(b) solely in relation to (i) Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and (ii) any Damages incurred by Buyer in connection with a Buyer Remediation Assumption.58

Order of Recovery. (a) Buyer will From and after the Effective Time, any indemnification to which any of the Purchaser Indemnitees are entitled under this Agreement as a result of any Damages shall 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 satisfied as follows: , the Purchaser Indemnitees shall seek to recover amounts in respect of such claims (i) first, by recouping (A) an amount equal to the Majority Shareholder’s Pro Rata Share of such Damages via reduction of the principal amount of the Majority Shareholder Note and (B) an amount equal to the Minority Shareholders’ aggregate Pro Rata Share of such Damages from the General Indemnification Escrow Portion (Funds until the Escrow Account is exhausted or released pursuant to the extent available amounts terms of the General Indemnification Escrow Portion remain in the Escrow Account)Agreement, (ii) second, if the Majority Shareholder Note and/or the Escrow Funds are not sufficient to pay the entire amount of the Majority Shareholder’s Pro Rata Share or the Minority Shareholders’ aggregate Pro Rata Share, respectively, of any such claim for indemnification, then from the R&W Policy to the extent such Damages are covered by application by Buyer for recovery the R&W Policy and exceed the remaining retention under the R&W Policy, and (iii) finally, to the extent the Damages exceed the principal amount of the Majority Shareholder Note and/or Escrow Funds, as applicable, the remaining retention under the R&W Policy, and coverage available under the R&W Policy (providedwith respect thereto, 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, then directly from the StockholdersSelling Shareholders in accordance with (x) each such Selling Shareholder’s Pro Rata Share and (y) the limitations set forth in this Section 11.3; provided, however, Buyer may only notwithstanding anything in this Section 11.3(d) to the contrary, any of the Purchaser Indemnitees shall be entitled to immediately seek payment recovery 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 Selling Shareholder with respect to such Selling Shareholder’s Individual Fraud. No Purchaser Indemnitee shall recoup any Damages prior to from the exercise of such commercially reasonable efforts, and, (B) following the exercise of such commercially reasonable efforts, proceeding with recovery directly against the Stockholders Escrow Funds except in accordance with the terms of this Article VI Agreement and the Escrow Agreement. Other than in the case of Fraud, to the extent that any of the Purchaser Indemnitees could reasonably expect to recoup any Damages indemnifiable hereunder from either the R&W Policy or the Selling Shareholders (even if recovery has not yet been made under including by recourse against the Escrow Funds), Parent and Purchaser shall, and shall cause the other Purchaser Indemnitees to, use its and their reasonable best efforts to recover from the R&W Policy any such Damages that could reasonably be covered by 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 will be entitled to payment for any indemnifiable Damages arising under Section 6.1(b) (solely in relation to Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and any Damages incurred by Buyer in connection with a Buyer Remediation Assumption), subject to all applicable limitations and terms set forth in this Agreement, only as follows: (i) first, from the Environmental Indemnification Escrow Portion (to the extent available amounts of the Environmental Indemnification Escrow Portion remain in the Escrow Account), (ii) second, from the General Indemnification Escrow Portion (to the extent available amounts of the General Indemnification Escrow Portion remain in the Escrow Account), and (iii) third, directly from the Stockholders, which shall be paid by the Stockholders. For the avoidance of doubt, subject to the release terms set forth in Section 6.8(b) below, the sole permitted use of the Environmental Indemnification Escrow Portion is to pay indemnifiable Damages arising under Section 6.1(b) solely in relation to (i) Stockholders’ ISRA Compliance undertakings set forth in Section 5.7 and (ii) any Damages incurred by Buyer in connection with a Buyer Remediation Assumption.