Common use of Source of Recovery Clause in Contracts

Source of Recovery. If there is determined to be any amount owing to a Buyer Indemnified Person as a result of indemnification pursuant to Section 9.3(a)(i), such amount shall first be paid and satisfied from an amount of the Indemnity Escrow Fund equal, in the aggregate, to the Deductible, in accordance with this Agreement and the Escrow Agreement and, following such time as the Retention Amount (as defined in the R&W Insurance Policy) has been met, then such Buyer Indemnified Person may recover such amount exclusively from the R&W Insurance Policy, regardless of any amount remaining in the Indemnity Escrow Fund. If there is determined to be any amount owing to a Buyer Indemnified Person as a result of indemnification pursuant to Sections 9.3(a)(ii) through (ix), such amount shall be paid and satisfied exclusively from the Indemnity Escrow Fund in accordance with this Agreement and the Escrow Agreement; provided, that Seller’s liability for Indemnifiable Damages pursuant to Section 9.3(a)(viii) shall not exceed, in the aggregate, an amount of the Indemnity Escrow Fund equal to the Special Indemnity Cap. For the avoidance of doubt, notwithstanding any other provision in this Agreement, including this Article IX, Buyer acknowledges, understands and agrees that, except as set forth in Section 9.5(c) and subject to the additional limitations set forth in this Section 9.5, (i) any and all amounts payable by Seller as a result of any claim by a Buyer Indemnified Person for indemnification pursuant to this Article IX shall be paid solely out of and to the extent of the Indemnity Escrow Fund pursuant to the Escrow Agreement, and (ii) for Indemnifiable Damages pursuant to Section 9.3(a)(i) in amounts in excess of an amount of the Indemnity Escrow Fund equal to the Deductible, the sole source of recovery of the Buyer Indemnified Persons for Indemnifiable Damages in this Agreement shall be the R&W Insurance Policy.

Source of Recovery. If there is determined to be Any valid indemnification claims brought by any amount owing to a Buyer Indemnified Person as a result of indemnification the Parent Indemnitees pursuant to Section 9.3(a)(i)8.2(a) and payable by the Company Securityholders shall be paid: (i) first, such amount shall first be paid and satisfied from an amount the Escrow Funds (to the extent of the Indemnity Escrow Fund equalAmount, if any, then remaining in the aggregate, to the DeductibleEscrow Account), in accordance with this Agreement the Escrow Agreement, and Parent and the Escrow Agreement and, following Member Representative shall promptly cause such time as the Retention Amount (as defined in the R&W Insurance Policy) has been met, then such Buyer Indemnified Person may recover such amount exclusively from the R&W Insurance Policy, regardless of any amount remaining in the Indemnity Escrow Fund. If there is determined payment to be any amount owing delivered to a Buyer Indemnified Person as a result Parent under the terms of indemnification pursuant to Sections 9.3(a)(ii) through (ix), such amount shall be paid and satisfied exclusively from the Indemnity Escrow Fund in accordance with this Agreement and the Escrow Agreement; provided(ii) second, that Seller’s liability for Indemnifiable Damages pursuant to Section 9.3(a)(viiiif such payment is not satisfied by the preceding clause (i), by recovery from the R&W Policy and (iii) shall not exceedthird, in the aggregate, an amount of event the Indemnity Escrow Fund equal is exhausted and the ability to recover under the R&W Policy is exhausted or not available, subject in each case to the Special Indemnity Cap. For the avoidance of doubt, notwithstanding any other provision in this Agreement, including this Article IX, Buyer acknowledges, understands and agrees that, except as set forth in Section 9.5(c) and subject to the additional limitations set forth in this Section 9.5Agreement, (i) then severally and not jointly in accordance with each Company Securityholder’s respective Merger Consideration Percentage, by recovery from each such Company Securityholder; provided that, with respect to any and all amounts indemnification payable by Seller a Company Securityholder to a Parent Indemnitee as a result of any claim breach by a Buyer Indemnified Person Company Securityholder of the representations, warranties or covenants in such Company Securityholder’s Letter of Transmittal, solely the Company Securityholder responsible for creating such indemnification pursuant to this Article IX obligation shall be responsible therefor, and the Parent Indemnitee(s) will be entitled to recover solely from such Company Securityholder after first seeking recovery from such Company Securityholder’s Pro Rata Escrow Share and subject to the other limitations set forth in this Agreement. For purposes of clarity, Parent (for itself and on behalf of the Parent Indemnitees) acknowledges and agrees that it must first make claims for payment for any such liability, to the extent covered under the R&W Policy, against the R&W Policy. Furthermore, Parent (for itself and on behalf of the Parent Indemnitees) acknowledges and agrees that in the event a claim under the R&W Policy is denied and Parent or Parent’s Indemnitees’ actions (or inaction) (in the case of the Surviving Corporation, only such actions after Effective Time) is the sole cause of such denial, then the Parent Indemnities shall not be entitled to indemnity by the Company Securityholders to the extent prejudiced thereby. Finally, any amount paid solely out by the insurer under the R&W Policy shall be deemed to have been paid to Parent or the Parent Indemnitees, as applicable, (regardless of which loss payee is actually paid under the R&W Policy) and such deemed payment shall be taken into account when determining the Company Securityholders’ liability hereunder. With respect to clause (ii) in the preceding paragraph, Parent shall use commercially reasonable efforts to diligently pursue collection of such claim under the R&W Policy. Parent’s obligation to use commercially reasonable efforts to recover Losses under the R&W Policy shall not include any obligation to litigate such claims with the applicable insurer if the insurer has denied coverage in writing, except to the extent that the Indemnitor elects, in its discretion, to pay all of the expenses of such litigation. No Parent Indemnitee may assert or pursue any claims for Losses against any Company Securityholder if, and to the extent extent, such Parent Indemnitee has been compensated for such Losses under the terms of the Indemnity Escrow Fund pursuant R&W Policy. In the event that a Parent Indemnitee is compensated for a Loss under the terms of the R&W Policy after payment for such Loss has already been made by Company Securityholders to such Parent Indemnitee, then such Parent Indemnitee shall pay to such Company Securityholders an amount equal to the Escrow Agreement, and amount that would have been applied under clause (ii) for Indemnifiable Damages pursuant of the preceding paragraph. Nothing set forth in this Section 8.5 shall be deemed to Section 9.3(a)(i) in amounts in excess expand or limit the scope of an any of Company Securityholders’ obligations to any Parent Indemnitee with respect to the amount of Losses payable by the Indemnity Escrow Fund equal to the Deductible, the sole source of recovery of the Buyer Indemnified Persons for Indemnifiable Damages in this Agreement shall be the R&W Insurance PolicyCompany Securityholders.

Source of Recovery. (a) If there is determined to be any amount owing to a Buyer Purchaser Indemnified Person Party as a result of indemnification pursuant to under this Article IX or Section 9.3(a)(i)10.2, such the amount shall first be paid and satisfied from an amount of the Indemnity Escrow Fund equal, in the aggregate, to the Deductible, in accordance with this Agreement and the Escrow Agreement and, following such time as the Retention Amount (as defined in the R&W Insurance Policy) has been met, then such Buyer Indemnified Person may recover such amount exclusively from the R&W Insurance Policy, regardless of any amount remaining in the Indemnity Escrow FundFund shall be used by a Purchaser Indemnified Party as the first recourse with respect to any and all amounts owed to a Purchaser Indemnified Party pursuant to this Article IX or Section 10.2. If there However, if the amount then remaining in the Indemnity Escrow Fund is determined insufficient to be satisfy in full any amount owing to a Buyer Purchaser Indemnified Person Party as a result of indemnification pursuant under this Article IX or Section 10.2, then the Purchaser Indemnified Parties shall seek recourse against the R&W Insurance Policy (unless coverage is expressly not available for such claim). If the amount then remaining in the Indemnity Escrow Fund is insufficient to Sections 9.3(a)(iisatisfy in full any Indemnification Claim asserted in good faith under this Article IX solely in respect of the matters set forth in clauses (A) through (ixD) of Section 9.2(c)(iii), and, in any case, the amount of any such amount Indemnification Claim asserted in good faith would reasonably be expected to exceed the then remaining R&W Insurance Policy Coverage Amount, then the Purchaser Indemnified Party shall be entitled to recourse directly against the Equity Holders (in accordance with each Equity Holder’s allocable share of the Merger Consideration paid as of such date and satisfied exclusively after giving credit to Xxxxxxx for the amount paid or to be paid from the Indemnity Escrow Fund in accordance with this Agreement Fund) on a several (and the Escrow Agreement; provided, that Seller’s liability for Indemnifiable Damages pursuant to Section 9.3(a)(viiinot joint and several) shall not exceed, in the aggregate, an amount basis based on their allocable share of the Indemnity Escrow Fund equal to the Special Indemnity Cap. For the avoidance Merger Consideration paid as of doubt, notwithstanding any other provision such date (and in this Agreement, including this Article IX, Buyer acknowledges, understands and agrees that, except as set forth in Section 9.5(c) and all cases subject to the additional limitations set forth in this Section 9.5), for the amount in excess of the then-remaining Indemnity Escrow Fund and the then remaining R&W Insurance Policy Coverage Amount (i) any except for claims that are expressly not covered by the R&W Insurance Policy in the first instance), subject to the other limitations and all amounts payable by Seller as a result qualifications of any claim by a Buyer Indemnified Person for indemnification pursuant to this Article IX shall be paid solely out of and provided that to the extent of the Indemnity Escrow Fund pursuant to the Escrow Agreement, and (ii) for Indemnifiable Damages any such Indemnification Claim is asserted pursuant to Section 9.3(a)(i9.2(c)(iii)(B) in amounts in excess respect of an amount any intentional breach or intentional non-fulfillment of the Indemnity Escrow Fund equal any covenant or agreement made by any one or more Equity Holders, then such Equity Holders whose intentional breach or intentional non-fulfillment gave rise to the Deductible, the sole source of recovery of the Buyer Indemnified Persons for Indemnifiable Damages in this Agreement such Indemnification Claim shall be the R&W Insurance Policyexclusively liable for any such amounts.