Sources of Recovery. In the event of a claim by any Buyer Indemnified Party under this Article IX, the Losses shall be satisfied, subject to the satisfaction of the Basket pursuant to Section 9.08(a) (if applicable), from the Preferred Shares by adjusting the conversion ratio as set forth in Section 4.2 the Certificate of Designation (the “Conversion Ratio”) as set forth below; provided, that Buyer may elect to satisfy any such Losses by deducting a number of shares equal to the amount of such Losses from the Earn-Out Shares if there are outstanding Losses if and when the Earn-Out Shares are to be issued to Sellers. Promptly following the 24-month anniversary of the Closing Date and the settlement of any then-pending claims for Losses, Buyer shall amend the Certificate of Designation to adjust the Conversion Ratio such that the aggregate number of shares of Common Stock issuable upon the conversion of the Preferred Shares shall be equal to the product of (1) the quotient of (A) the difference between (i) $3,000,000 less (ii) that amount of Losses to be satisfied hereunder, divided by (B) $3,000,000, multiplied by (2) the number of shares of Common Stock that would have otherwise been issuable upon the conversion of the Preferred Shares prior to any adjustment of the Conversion Ratio set forth herein. For the sake of example, if 3,000,000 shares of Common Stock were otherwise issuable upon the conversion the Preferred Shares, and the Buyer Indemnified Parties successfully claimed $1,000,000 of Losses, then the Conversion Ratio shall be adjusted such that 2,000,000 shares of Common Stock would be issuable upon the conversion of the Preferred Shares, as further evidenced below: Until such time that all Preferred Shares have been converted to Common Stock, in no event shall Buyer otherwise amend the Certificate of Designation except as otherwise provided in this Section 9.09 without the prior written consent of the holders of a majority of the Preferred Shares issued or issuable to Seller’s stockholders pursuant to this Agreement.
Sources of Recovery. (a) The Purchaser hereby agrees and acknowledges that its right to any payment to be made pursuant to Section 2.04(h)(i) solely from the Purchase Price Adjustment Escrow Amount shall be the Purchaser’s sole and exclusive source of recovery for any amounts owing to the Purchaser pursuant to Section 2.04(h)(i).
(b) Following the Closing, the Purchaser hereby acknowledges and agrees that, except as expressly provided in Section 13.13(a) and Section 13.16, neither the Company, nor the Seller, shall have any liability, responsibility or obligation arising under this Agreement or any exhibit or Schedule hereto, or any ancillary agreement, certificate or other document entered into, made, delivered, or made available in connection herewith, or as a result of any of the transactions contemplated hereby or thereby (including with respect to any matters arising under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or any other Environmental Law), whether purporting to sound in contract or tort, or at law or in equity, or otherwise, in each case, other than any obligation of one party to another in respect of a covenant set forth in Article VIII, Article X and Article XII in favor of the Seller that survives the Closing. Notwithstanding the prior sentence or any other provision of this Agreement, a claim or action based on fraud may be brought at any time.
(c) Notwithstanding any provision of this Agreement or otherwise, the parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement shall have any liability relating to this Agreement or any of the transactions contemplated herein except to the extent agreed to in writing by such Non-Recourse Party.
Sources of Recovery. (a) Subject to the other applicable limitations of liability set forth in this Article VIII, all amounts payable by any Seller to any of the Purchaser Indemnified Parties pursuant to Section 8.02 shall be paid first by Sellers up to the retention amount outstanding under the R&W Insurance Policy, and second from the R&W Insurance Policy (if and to the extent covered thereby), and third directly from the Seller Indemnifying Parties and each Seller Indemnifying Party shall, subject to Section 8.04, be liable for such Seller Indemnifying Party’s Georgia C-Corporation Equity Percentage of such Losses.
(b) If a Purchaser Indemnified Party is entitled to be indemnified for Losses in the case of Fraud of the Georgia C-Corporation or intentional breach by the Georgia C-Corporation, or pursuant to Section 8.02(b) for a breach of a Seller Fundamental Representation by the Georgia C-Corporation, then such Purchaser Indemnified Party shall, subject to Section 8.06(a), be entitled to recover such Losses directly from the Seller Indemnifying Parties, and each Seller Indemnifying Party shall, subject to Section 8.04 and this Section 8.06, be liable for such Seller Indemnifying Party’s Georgia C-Corporation Equity Percentage of such Losses. If a Purchaser Indemnified Party is entitled to be indemnified for Losses in the case of Fraud of a Seller or intentional breach by a Seller, or pursuant to Section 8.02(b) for a breach of a Seller Fundamental Representation by a Seller, then such Purchaser Indemnified Party shall, subject to Section 8.06(a), be entitled to recover such Losses directly from such Seller, and such Seller shall, subject to Section 8.04 and this Section 8.06, be liable for the full amount of such Losses.
Sources of Recovery. To the extent a monetary obligation or payment is due and owing by the Owners to any Holdco Indemnitee pursuant to this Article 9, at the Indemnitor’s option, any such indemnification payment may be satisfied, as applicable, (i) pursuant to a forfeiture of a corresponding amount of any shares of CLNH then held by such Indemnitor, based on the fair market value (calculated by taking the average of the highest and lowest selling prices of the shares of CLNH) of such shares of CLNH as of the date of determination that such indemnification obligation is due and owing (by final nonappealable court order or agreement of the Indemnitor and Holdco Indemnitee); and/or (ii) by wire transfer of immediately available funds to the account or accounts designated in writing by Holdco Indemnitee within five (5) Business Days after it is established (by final nonappealable court order or agreement of the Indemnitor and Holdco Indemnitee) that Holdco Indemnitee is entitled to such payment under this Article 9.
Sources of Recovery. Other than in the case of Claims based on Fraud, except as specifically provided below, the sole and exclusive remedy of each Buyer Indemnified Party in respect of any Claim arising under Sections 9.04
Sources of Recovery. The amount of any Losses subject to indemnification pursuant to this Agreement (i) shall not be duplicative of any other Losses for which an indemnification Claim has been paid and (ii) shall be computed net of any amounts actually recovered by such Indemnified Party under any insurance policy with respect to such Losses (net of any costs and expenses incurred in obtaining such recovery and net of any resulting increase in premiums as a result of such Claim). The existence of a Claim by an Indemnified Party for monies from an insurer or other party shall not, however, delay any payment pursuant to the indemnification provisions contained herein and otherwise determined to be due and owing by a Seller Indemnitor. Rather, the Seller Indemnitor shall make timely payment of the full amount of Losses determined to be due and owing by it, and if the Indemnified Party later actually recovers insurance or other proceeds in respect of such Losses then the Indemnified Party shall promptly reimburse the Seller Indemnitor to the extent necessary to avoid double recovery of the same Losses. With respect to any Claim under Section 11.1(a) that is insured under any policy under the RWI Binder, the Indemnified Party shall use commercially reasonable efforts to first seek full recovery under such policy under the RWI Binder to the same extent as such Indemnified Party would if such Loss were not subject to indemnification hereunder. Any deductible attributable to Claims made shall be indemnifiable Losses. Nothing herein shall waive any Party’s common law duty to mitigate, as and to the extent such common law duty requires, any such Claim or liability upon and after becoming aware of any event or condition which could reasonably be expected to give rise to any Losses that are indemnifiable under this Article XI, provided, that the failure to so mitigate shall only reduce the rights of such Party to recover for Losses to the extent of the Losses that would have been avoided by such mitigation.
Sources of Recovery. The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
Sources of Recovery. (a) Notwithstanding anything to the contrary herein, where a Purchaser Indemnified Person is entitled to Damages as a result of the breach or inaccuracy of the representations and warranties of the Holdcos 2, the Principals and Trusts pursuant to Section 14.1(a) those Damages will be satisfied from the following sources in the following order:
(i) first, from the Indemnity Escrow Amount until the Indemnity Escrow Amount has been reduced to nil and all funds therein have been released in accordance with the Escrow Agreement;
(ii) subject to the provisions of Section 14.8(b), then, from the coverage provided under the R&W Insurance Policy, up to the R&W Insurance Policy’s coverage limit; and
(iii) then, but only in respect of Damages payable by the Holdcos 2, the Principals and the Trusts for claims based on Damages arising out of Fraud, Tax Liabilities, Tax Representation, Specific Indemnifications and Fundamental Representations, to the extent such Damages are not covered under, or exceed the limitation of coverage available under, the R&W Insurance Policy and the Indemnity Escrow Amount, by direct recovery from the Holdcos 2, the Principals and the Trusts or any of them.
(b) Notwithstanding any provisions of this Agreement, for indemnifiable matters other than Sections 14.1(a), 14.2(a)(i) and 14.2(b)(i), including for (i) Damages arising out of Fraud, Tax Liabilities and Tax Representations by any Indemnifying Party, or (ii) the indemnities ensuing from the Specific Indemnifications, the Purchaser shall be entitled to claim direct recovery of Damages from the relevant Indemnifying Party.
(c) Nothing in this Section 14.10 shall affect any right of set-off available to the Purchaser pursuant to Section 14.16.
Sources of Recovery. The Buyer shall have the right, in its sole discretion, to withhold and set off the amount of Losses owed by the Owners or the Seller with respect to a breach of or inaccuracy of any of the representations and warranties set forth in Section 9.2(a) against: (i) any Earnout Payment due pursuant to Section 2.9, (ii) the One Year Anniversary Payment that would otherwise be payable to the Seller pursuant to Section 2.10 or (iii) any distributions due to the Seller under the Second Amended and Restated Limited Liability Company Agreement; provided, however, that solely in the case of any such Losses with respect to a breach of or inaccuracy of any of the representations and warranties set forth in Article IV, the Seller Fundamental Representations or Extended Representations pursuant to Section 9.2(a)(i), or for Losses pursuant to Sections 9.2(a)(ii) - 9.2(a)(viii), the Buyer shall have the right to recover such Losses from the Owners or the Seller by demanding payment within twenty (20) Business Days.
Sources of Recovery. 65 7.5 Calculation of Damages............................................................................................................. 65 7.6 Notification. ................................................................................................................................ 65 7.7 Defense of Third Party Claim..................................................................................................... 66 7.8 Payments ................................................................................................................................... 67 7.9 One Recovery. ........................................................................................................................... 67