Excess Recovery Clause Samples
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Excess Recovery. If at any time or from time to time (i) the Guarantor shall have made any payment in respect of a Defaulted Payment as provided in Section 2.01 or Section 2.02, and (ii) the obligee that is the payee of such payment(s) shall have received any other payment in respect of such Defaulted Payment from MEP or any other party or parties, and (iii) as a result thereof, such obligee has received payments in respect of the Defaulted Payment aggregating more than 100% of the amount thereof, and the payments so received are indefeasible, the Guarantor shall be entitled to a refund from the payee equal to the Guarantor’s Share of such excess. For purposes of the foregoing sentence:
(a) if each of the Guarantor and the Other Guarantors shall have fully honored its obligation in respect of the Defaulted Payment as set forth in Section 2.01 of this Agreement or Section 2.01 of the applicable Other Guaranty Agreement, as the case may be, the “Guarantor’s Share” of such excess shall be the Guarantor’s Stated Percentage thereof; or
(b) if any of the Guarantor and the Other Guarantors shall not have fully honored its obligation in respect of the Defaulted Payment as set forth in Section 2.01 of this Agreement or Section 2.01 of the applicable Other Guaranty Agreement, as the case may be, the “Guarantor’s Share” of such excess shall be determined by multiplying the amount of such excess by a fraction of which the numerator is the aggregate of all payments made by the Guarantor in respect of Defaulted Payments under this Agreement, and the denominator is the aggregate of the payments made by the Guarantor and the Other Guarantors in respect of Defaulted Payments under this Agreement and the Other Guaranty Agreements.
Excess Recovery. If any Indemnified Party collects an amount in discharge of a claim in respect of a Loss pursuant to this Article VII and such Indemnified Party (or an Affiliate thereof) subsequently recovers from a third party a sum which is referable to that claim in respect of such breach (such that the Indemnified Party has received an amount in connection therewith in excess of its related Losses) (such excess recovery, the “Excess Recovery”), such Indemnified Party shall (or, as appropriate, shall procure that such Affiliate shall) forthwith repay to the indemnifying party or parties an amount equal to the Excess Recovery less any costs or expenses incurred by the Indemnified Party in procuring the Excess Recovery (but no more than the amount paid by or on behalf of the indemnifying parties to the Indemnified Party pursuant to this Article VII).
Excess Recovery. 6.1 This paragraph applies if:
(a) the Sellers make a Compensation or other indemnification payment (excluding any interest on a late payment) in respect of a Claim (the Compensation Payment); and
(b) within six months of the making of the relevant payment the Company or the Purchaser receives any sum which would not have been received but for the circumstance which gave rise to that Claim (the Third Party Sum);
(c) the receipt of that the Third Party Sum was not taken into account in calculating the Compensation or other indemnification; and
(d) the aggregate of the Third Party Sum and the Compensation Payment exceeds the amount required to compensate the Purchaser in full for the loss or liability which gave rise to the Claim in question, such excess being the Excess Recovery. If this paragraph applies, the Purchaser shall, promptly on receipt of the Third Party Sum by it or the Company, repay to the Seller an amount equal to the lower of (i) the Excess Recovery and (ii) the Compensation Payment, after deducting (in either case) all costs incurred by the Purchaser or the Company in recovering the Third Party Sum and any taxation payable by the Purchaser or the Company by virtue of its receipt.
Excess Recovery. The amount of any indemnifiable Losses for which recovery is available under this ARTICLE X will be net of any amounts actually recovered by an Indemnified Party under insurance policies (including the Buyer Insurance Policy) or other indemnity, contribution or other similar cash payment actually received by any an Indemnified Party from any third party with respect to such Losses, less all out-of-pocket fees, costs and expenses (including Taxes) incurred to collect such payments and any increase in insurance premiums actually incurred as a result of seeking recovery for such amounts (such amounts, the “Excess Recovery”). The Indemnified Party shall use commercially reasonable efforts to pursue any available Excess Recovery. If any Indemnified Party collects an amount from an Indemnifying Party in discharge of a claim in respect of a Loss pursuant hereto and such Indemnified Party subsequently recovers from a third party an Excess Recovery with respect to such Loss, such Indemnified Party shall (or, as appropriate, shall cause an Affiliate to) promptly repay to the Indemnifying Party an amount equal to the Excess Recovery. Notwithstanding the foregoing, no Indemnified Party shall have any obligation under this Agreement, whether as a condition to its indemnification rights hereunder or otherwise, to commence any Proceeding against any insurance providers in order to seek any recovery therefrom. Notwithstanding anything to the contrary herein, with respect to any Proceeding set forth on Schedule 3.13 of the Disclosure Letter, the parties acknowledge and agree that the applicable Newbury Fund or Newbury Fund Upper-Tier Entity that is party to such Proceeding shall be the primary indemnitor with respect to any indemnifiable Losses arising from such Proceeding and that the party suffering any such Loss shall first seek to recover for such loss from the applicable Newbury Fund or Newbury Fund Upper-Tier Entity prior to seeking recovery pursuant to this ARTICLE X.