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 Subject in all cases to be the other limitations and procedures contained in this Article 9, all indemnification payments or reimbursements to any amount owing to a Buyer Parent Indemnified Person pursuant to this Article 9 shall be made as a result of indemnification follows: (a) Except with respect to the Limitation Exceptions Claims and claims pursuant to Section 9.3(a)(i9.2.2(b), such amount shall first be paid Section 9.2.2(c) and satisfied Section 9.2.2(d), (i) from an amount of the Indemnity Escrow Fund equalAccount (but only if and to the extent that Indemnity Escrow Funds are available to pay for such Losses) or (ii) if the amount then on deposit in the Indemnity Escrow Account is not sufficient to make the payment in full to such Parent Indemnified Person, under the Policies, in an amount equal to the aggregateamount of any such deficiency. (b) With respect to claims pursuant to Section 9.2.2(b), (i) from the Indemnity Escrow Account (but only if and to the extent that Indemnity Escrow Funds are available to pay for such Losses) and (ii) thereafter, if the amount then on deposit in the Indemnity Escrow Account is not sufficient to make the payment in full to such Parent Indemnified Person, from the Holders in an amount equal to the amount of any such deficiency, calculated for each Holder in accordance with its Pro Rata Share. (c) With respect to the claims pursuant to Section 9.2.2(c), (i) first, from the Indemnity Escrow Account (but only if and to the extent that Indemnity Escrow Funds are available to pay for such Losses), (ii) second, at the Parent Indemnified Person’s option, to the Deductibleextent that amounts are recoverable in respect of such Losses under the terms and conditions of the Policies (and, for clarity, to the extent any retention under the Policies is applicable to any Loss, the amount of such retention shall be deemed to be not recoverable), if the amount then on deposit in the Indemnity Escrow Account is not sufficient to make the payment in full to such Parent Indemnified Person, under the Policies, in an amount equal to the amount of any such deficiency, and (iii) third, if the Parent Indemnified Person elects not to seek payment or reimbursement under the Policies, or the amount then remaining under the Policies and not subject to claims thereunder is not sufficient to make the payment or reimbursement in full to such Parent Indemnified Person, from the Holders in an amount equal to the amount of any such deficiency, calculated for each Holder in accordance with this Agreement its Pro Rata Share. (d) With respect to any claims pursuant to Section 9.2.2(d), from the Healthcare Billing and HIPAA Escrow Account. Claims pursuant to Section 9.2.2(d) shall be satisfied through return by the Escrow Agreement Agent to Parent of such number of Remainder Escrow Parent Shares (the “Shares Subject to Claims”) as shall equal the applicable amount of Losses incurred by the Parent Indemnified Person divided by the greater of (i) the closing price of Parent Common Stock on the last trading day immediately prior to the date such claim is made by the Parent Indemnified Person (the “Claim Time Per Share Price”), and (ii) the Initial Value. (e) With respect to the Limitation Exceptions Claims against the Holders, (i) first, from the Indemnity Escrow Account (but only if and to the extent that Indemnity Escrow Funds are available to pay for such Losses), (ii) second, to the extent that amounts are recoverable in respect of such Losses under the terms and conditions of the Policies (and, following for clarity, to the extent any retention under the Policies is applicable to any Loss, the amount of such retention shall be deemed to be not recoverable), if the amount then on deposit in the Indemnity Escrow Account is not sufficient to make the payment in full to such Parent Indemnified Person, under the Policies, an amount equal to the amount of any such deficiency, and (iii) third, after such time as the Retention Amount aggregate Losses that the Parent Indemnified Persons have suffered or incurred (as defined that are of the type addressed by Section 9.2.1 or 9.2.2(a)) exceed the amount of coverage available under the Policies not subject to other claims thereunder, from the Holders in an amount equal to the R&W Insurance Policyamount of any such deficiency, calculated for each Holder in accordance with its Pro Rata Share; provided, however, that (1) has been met, then such Buyer the Parent Indemnified Person may recover such amount exclusively shall seek recovery under the Policies, and shall not seek indemnification from the R&W Insurance PolicyHolders with respect to such Limitations Exception Claims under Section 9.2.2(a) if, regardless and to the extent, there is coverage available under either Policy not subject to claims thereunder, and (2) in each case without the prior written consent of the Holders’ Representative, Parent shall not amend or modify either Policy or any provisions thereof to reduce the coverage available thereunder, or amend or modify either Policy or any provisions thereof in a manner that would be adverse to the Holders, in each case, without the prior written consent of the Holders’ Representative. (f) In the event any Parent Indemnified Person shall be entitled to receive payment or reimbursement of any amount remaining in the Indemnity Escrow Fund. If there is determined to be any amount owing to amounts from a Buyer Indemnified Person as a result of indemnification Holder pursuant to Sections 9.3(a)(ii(b), (c) through or (ix)e) of this Section 9.2.5, as applicable, such amount shall be paid and satisfied exclusively from the Indemnity Escrow Fund in accordance with this Agreement and the Escrow Agreementby each such Holder by wire transfer of immediately available funds to such Parent Indemnified Person to an account designated by such Parent Indemnified Person; provided, that Seller’s liability for Indemnifiable Damages however, if the amount to be paid by a Holder exceeds the amount of cash merger consideration actually received by such Holder pursuant to Section 9.3(a)(viiiArticle 2, such deficiency shall be paid by such Holder to the Parent Indemnified Person by either, or a combination of, the following methods: (i) shall not exceed, by wire transfer of immediately available funds to such Parent Indemnified Person in the aggregate, an amount of the Indemnity Escrow Fund equal to the Special Indemnity Cap. For number of shares of Parent Company Stock received and previously disposed of by such Holder multiplied by the Initial Value thereof (for the avoidance of doubt, notwithstanding any other provision shares of Parent Common Stock released from the Healthcare Billing and HIPAA Escrow Account in satisfaction of a claim for indemnification under Section 9.2.2(d) shall not constitute shares previously disposed of by a Holder for purposes of 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, clause (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 by return to Parent of that portion of the Parent Company Stock received (or held in escrow for), and not disposed of, by such Holder. If any such deficiency is to be paid pursuant to Section 9.3(a)(i) in amounts in excess subsection (ii), and the applicable shares of an stock merger consideration are then the Remainder Escrow Parent Shares, such deficiency shall be satisfied through return by the Escrow Agent to Parent of such number of Remainder Escrow Parent Shares equal to the amount of the Indemnity Escrow Fund equal remaining deficiency divided by the greater of (i) the closing price of Parent Common Stock on the last trading day immediately prior to the Deductible, date of such release and (ii) the sole source of recovery of the Buyer Indemnified Persons for Indemnifiable Damages in this Agreement shall be the R&W Insurance PolicyInitial Value.

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) Except to the extent provided in Section 2(c)(ii)(C), the Parent Indemnitees’ sole and exclusive source of recovery from the Bain Shareholder for the indemnification obligations set forth in Section 2(a) of this Agreement shall be (I) any and all cash proceeds from a direct or indirect disposition of Subscribed Topco Common Units to which the Bain Shareholder is entitled, including cash proceeds from a disposition of Subscribed Topco Common Units to a Person other than Parent or its Affiliates, and (II) any and all cash distributions (including tax distributions) with respect to Subscribed Topco Common Units to which the Bain Shareholder is entitled, in each case, that would otherwise be paid after a relevant Due Date (as defined below) (“Rollover Proceeds”). (B) To the extent any amounts owed by the Bain Shareholder under Section 2(a) remain unpaid, (I) Parent and its Affiliates and agents shall be entitled to withhold such amounts from any Rollover Proceeds to which the Bain Shareholder would otherwise be entitled and such amounts will be treated as having been paid or distributed to the Bain Shareholder for all purposes, and (II) the Bain Shareholder shall direct any buyer of Subscribed Topco Units held by the Bain Shareholder to wire such amounts (to the extent not in excess of the consideration paid by such buyer for the Subscribed Topco Units) to Parent or another Person designated by Parent. (C) Without limiting the generality of Section 2(c)(ii)(B), to the extent that a Liquidity Event occurs or a cash distribution described in Section 2(c)(ii)(A) would otherwise be paid before all Dutch Tax Actions have been fully and completely resolved, withdrawn or settled with any liability related thereto having been satisfied in full, the following provisions shall apply to proceeds from such Liquidity Event or such cash distribution: A. If there is determined the proceeds from such Liquidity Event consist solely of cash or with respect to any such cash distribution, Parent shall be entitled to withhold (or cause to be any amount owing withheld) from Rollover Proceeds otherwise payable in cash to the Bain Shareholder and hold in a Buyer Indemnified Person as mutually agreeable third-party escrow account, or, if the purchaser of Subscribed Topco Units is not Parent or an Affiliate thereof, the Bain Shareholder shall deposit in a result of indemnification mutually agreeable third-party escrow account designated by Parent, in each case pursuant to the terms of a mutually agreeable escrow agreement the terms of which the Parties shall negotiate in good faith, an amount equal to the lesser of (I) the Cap, less any amounts already paid by the Bain Shareholder pursuant to this Agreement, (II) Parent’s good-faith estimate of the maximum amount for which the Bain Shareholder could be liable under this Agreement at the time of such Liquidity Event or cash distribution, in each case, as determined by Parent in good faith with the approval of the Bain Shareholder (such approval not to be unreasonably withheld, delayed, or conditioned), and (III) cash proceeds received by the Bain Shareholder for its Subscribed Topco Common Units upon such Liquidity Event or an amount equal to such cash distribution as applicable; provided that, in the Bain Shareholder’s sole discretion, the Bain Shareholder may, in lieu of depositing such funds as may be required pursuant to this Section 9.3(a)(i2(c)(ii)(C)(A), instead provide a customary guaranty of such obligations from a creditworthy affiliated investment fund of the Bain Shareholder. B. If the proceeds from such Liquidity Event or distributions with respect to Subscribed Topco Common Units to which the Bain Shareholder is entitled consist solely of any property other than cash (including, without limitation, equity interests in any other entity), such amount property shall first be paid deemed to be replacement property for the Subscribed Topco Common Units (“Replacement Property”), the term “Subscribed Topco Common Units” shall be deemed to include such Replacement Property for all purposes of this Agreement, and satisfied from an amount the terms of the Indemnity Escrow Fund equal, in the aggregate, to the Deductible, in accordance with this Agreement and the Escrow Agreement and, following shall apply to 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 CapReplacement Property mutatis mutandis. For the avoidance of doubt, proceeds from a subsequent disposition of, or distribution on, Replacement Property received by the Bain Shareholder shall be Rollover Proceeds for purposes of this Agreement and shall be a source of recovery for Parent Indemnitees C. If the proceeds from such Liquidity Event or distributions with respect to Subscribed Topco Common Units to which the Bain Shareholder is entitled consist of cash and Replacement Property, (x) the Replacement Property shall be treated in the manner set forth in Section 2(c)(ii)(C)(B) above and (y) to the extent that Parent determines in good faith with the approval of the Bain Shareholder (such approval not to be unreasonably withheld, delayed, or conditioned) that amounts for which the Bain Shareholder could to be liable under this Agreement may exceed the value of the Replacement Property, Section 2(c)(ii)(C)(A) shall apply to cash proceeds from such Liquidity Event. (D) For the avoidance of doubt, subject to Section 2(c)(ii)(C), in no event shall any Parent Indemnitee have the right to “claw back” any such Rollover Proceeds or otherwise seek payment from the Bain Shareholder after such Rollover Proceeds have been paid to the Bain Shareholder; provided, however, that, notwithstanding anything to the contrary, if the Due Date for the payment of any other provision portion of Contested Dutch Taxes is postponed as a result of the second sentence of the definition of Contested Dutch Taxes, the provisions of Section 2(c)(ii)(C) shall apply to any Rollover Proceeds received during such the period beginning on the date a Parent Indemnitee makes a claim under Section 2(a) the payment of which is postponed as a result of the second sentence of the definition of Contested Dutch Taxes, but solely to the extent of any such postponed amounts. (E) Notwithstanding anything to the contrary in this Agreement, including to the extent that the Bain Shareholder directly or indirectly transfers the Subscribed Topco Common Units to an Affiliate of the Bain Shareholder in a non-arm’s length transaction, for purposes of this Article IXAgreement the term Bain Shareholder shall include both the Bain Shareholder as of the date hereof and such Affiliate, Buyer acknowledges, understands and agrees provided that, except as for purposes of determining the party required to provide the guaranty contemplated in the proviso set forth in Section 9.5(c) and subject 2(c)(ii)(C)(A)), the last reference in such proviso 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 Bain Shareholder shall be the R&W Insurance PolicyBain Shareholder as of the date hereof.

Source of Recovery. If there is determined (a) The Indemnification Escrow Amount shall be available to be any amount owing to a reimburse and compensate each of the Buyer Indemnified Person Parties for Losses, as a result source of remedy for the Buyer Indemnified Parties with respect to the indemnification obligations of Sellers under this Article X. All claims for recovery for any Loss or Losses from the Indemnification Escrow Amount shall be made 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 with, and be governed by the Escrow Agreement andterms of, 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. (b) If, at any time an Earn-Out Payment is due and payable and the Buyer Indemnified Parties have made a claim in accordance with this Article X for Losses (i) related to a Third-Party Claim at a time when the Indemnification Escrow Amount is not sufficient to provide recourse for all such Losses, Buyer may retain and not pay to Sellers that Seller’s liability portion of the Earn-Out Payment equal to the amount the Buyer Indemnified Parties reasonably and in good faith estimate (based upon the amount claimed pursuant to such Third Party Claim and reasonable defense costs and expenses) to be subject to such indemnification claim less the amount in the Indemnification Escrow Account that would provide recourse for Indemnifiable Damages such Losses (ii) unrelated to a Third-Party Claim at a time when the Indemnification Escrow Amount is not sufficient to provide recourse for all such Losses, [***] ([***] the “Agreed Deduction”). [***], Buyer may retain and not pay to Sellers that portion of such Earn-Out Payment that is equal to the Agreed Deduction less the amount in the Indemnification Escrow Account that would provide recourse for such Losses. [***]. (c) If the finally determined amount of Losses for such indemnification claim set forth in the foregoing clause (b) is less than the amount by which such Earn-Out Payment was reduced and retained by Buyer in accordance with the foregoing clause (b), then Buyer shall promptly pay the difference to the Sellers for distribution pursuant to Section 9.3(a)(viii) shall not exceed2.8(a), in together with interest thereon accruing daily beginning on the aggregate, an amount of day after the Indemnity Escrow Fund equal date on which such Earn-Out Payment was due until the day prior to the Special Indemnity Cap. For date on which such difference is paid, at the avoidance of doubt, notwithstanding any other provision in this Agreement, including this Article IX, Buyer acknowledges, understands and agrees that, except as interest rate set forth in Section 9.5(c2.8(b). If the finally determined amount of Losses for such indemnification claim set forth in the foregoing clause (b) exceeds the amount by which such Earn-Out Payment was reduced and retained for such claim, then such Buyer Indemnified Parties shall continue to be entitled to indemnification for the amount of such excess pursuant to the terms and conditions of this Article X. *** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (d) Notwithstanding anything contained in this Agreement to the contrary, subject to the additional limitations set forth contained herein, the Buyer Indemnified Parties agree to seek recourse for any Losses to be indemnified by Sellers under this Article X in this Section 9.5, the following order: (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 first, against the Indemnification Escrow Amount, to the extent of the Indemnity Indemnification Escrow Fund pursuant to the Escrow Agreement, and Account has available funds therein; (ii) for Indemnifiable Damages pursuant to Section 9.3(a)(i) second, in amounts in excess of an amount of the Indemnity Escrow Fund equal to the Deductible, the sole source of recovery of accordance with the Buyer Indemnified Persons for Indemnifiable Damages Parties’ set-off rights against Earn-Out Payments in this Agreement shall be accordance with the R&W Insurance Policyterms and conditions of Section 10.8(b) and Section 10.8(c); and (iii) third, directly against the Sellers.

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 ▇▇▇▇▇▇▇ 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 respect of any intentional breach or intentional non-fulfillment of 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 such Indemnification Claim shall be exclusively liable for any such amounts. (b) Notwithstanding anything to the contrary set forth in this Agreement, no Equity Holder will have liability under this Agreement in excess of an the 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 PolicyMerger Consideration received by such Equity Holder.