Payments; RWI Policy Clause Samples

Payments; RWI Policy. (A) All indemnification of the Parent Indemnified Parties by the Holders under this Section 9.2(a) shall be satisfied as follows: (1) first, for any claims within the scope of coverage provided by the RWI Policy, by the assertion of claims by Parent Indemnified Parties thereunder until such time as the policy limit set forth in the RWI Policy has been reached; provided, that the Holders shall be liable for fifty percent (50%) of the aggregate amount of the retention amount under the RWI Policy, without duplication, as set forth in Section 9.2(a)(ii)(B), and (2) with respect to any indemnification amounts not covered by the RWI Policy, or following the expiration of the RWI Policy, by the Holders in accordance with Section 9.2(a)(iii)(B) below. (B) The sole and exclusive recourse for any and all amounts payable by the Holders to any Parent Indemnified Party under this Section 9.2(a) will be to setoff such amounts against the unpaid portion of the Earn-Out Consideration (whether or not accrued), if any, as of the date each Claim Notice asserting Losses is submitted by any Parent Indemnified Party to the Holder Representative. Any such setoff will be applied to the Holders in accordance with the Payment Schedule. Notwithstanding the foregoing, neither the exercise of, nor the failure to exercise, such right of setoff will limit or affect (1) the rights of Parent under the RWI Policy, (2) the rights of the parties under Section 10.6(c) with respect to any covenants to be performed by the parties, or (3) Parent’s right to maintain or recover any amounts in connection with any action or claim based upon actual fraud. To the extent that liability for or the amount of indemnifiable Losses in respect of a claim for indemnification pursuant to this Section 9.2(a) has not yet been finally determined in accordance with this Agreement, Parent will be entitled to withhold payment from the accrued and unpaid portion of the Earn-Out Consideration otherwise due and payable to the Holders in an amount up to Parent’s good faith estimate of such Losses set forth in the Claim Notice until the amount of such indemnifiable Losses has been finally determined (any such claim, an “Unpaid Indemnification Claim”). The exercise of such right of setoff by Parent in accordance with the terms of this Section 9.2(a)(iii)(B) will not constitute a breach of Parent’s obligation to pay the Earn-Out Consideration or any other amounts due under this Agreement.