Common use of Established Claims Clause in Contracts

Established Claims. (i) If, at any time on or before the end of the Escrow Period, any Parent Indemnitee (as defined in the Merger Agreement) is entitled to make a claim for indemnification pursuant to Article IX of the Merger Agreement (an “Indemnification Claim”), after fully complying with the procedures and obligations required therein, the Committee may deliver written notice to the Representative (each a “Notice”), with a copy to the Escrow Agent, that contains (i) a description, in reasonable detail, of the nature of the Indemnification Claim, (ii) the total amount of the actual out-of-pocket Loss or the anticipated potential Loss (including any costs or expenses, along with the method of calculation thereof, which have been or may be reasonably incurred in connection therewith), (iii) whether such Loss may be covered (in whole or in part) under any insurance or contractual indemnification rights or other reimbursement arrangements and the estimated amount of such Loss which may be covered under such insurance or contractual indemnification rights or other reimbursement arrangements, and (iv) the basis of the Committee’s request for indemnification under the Merger Agreement in reasonable detail, including a reference to the specific provision of the Merger Agreement alleged to have been breached, and, if applicable, noting that such Indemnification Claim is a Blocker Claim (as defined below). Each such Notice will request that the Escrow Agent distribute all or a portion of the Escrow Fund (the “Distribution Request Amount”) to Harmony in satisfaction of the amount of such Indemnification Claim, subject to the limitations, procedures and obligations required by Article IX of the Merger Agreement, together with a copy of any other documentation required pursuant to the terms of the Merger Agreement. (ii) If the Representative provides a notice to the Committee (with a copy to the Escrow Agent) (a “Counter Notice”), within thirty (30) days following the date of the Notice (such thirty (30)-day period, the “Representative Review Period”), disputing all or a portion of the matters or amounts described in the Notice, the Representative and the Committee shall attempt to resolve such dispute by voluntary settlement as provided in Section 4(b) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from the Committee within the Representative Review Period, then the Distribution Request Amount in the Indemnification Claim shall be deemed to be an Established Claim (defined below) for purposes of this Agreement and if a Counter Notice is delivered disputing only a portion of the matters or amounts described in the Notice, the undisputed portion of the Distribution Request Amount pertaining to such Indemnification Claim shall be deemed to be an Established Claim. (iii) As used in this Agreement, “Established Claim” means any (i) portion of any Distribution Request Amount that is not disputed pursuant to Section 4(a)(ii) above, (ii) portion of any Distribution Request Amount that is resolved by mutual resolution pursuant to Sections 4(b)(i) and (ii), resulting in an award to Harmony, or (iii) portion of any Distribution Request Amount that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction. Notwithstanding anything herein to the contrary, each Indemnification Claim shall be subject to the limitations, procedures and obligations set forth in Article IX of the Merger Agreement, and no portion of any Indemnification Claim may be deemed to be an Established Claim or otherwise payable under Article IX of the Merger Agreement unless and until the aggregate amount of all indemnifiable Losses under Section 9.4(d) of the Merger Agreement exceeds the Deductible, in which event the Distribution Request Amount of such Indemnity Claim must only include Losses incurred in excess of such Deductible. The Owners’ aggregate liability for Losses shall not in any event exceed the value of the Escrow Fund.

Established Claims. (i) If, at any time on or before the end of the Escrow Period24-month anniversary of the Closing (or the 36-month anniversary of the Closing with respect to Supplemental Indemnification Matters), any Parent Indemnitee Indemnified Party (as defined in the Merger Agreement) is entitled to make a claim for indemnification pursuant to Article IX X of the Merger Agreement (an “Indemnification Claim”), after fully complying with the procedures and obligations required therein, the Committee Parent may deliver written notice to the Stockholders’ Representative (each a “Notice”), with a copy to the Escrow Agent, that contains (i) a description, in reasonable detail, of the nature of the Indemnification Claim, (ii) the total amount of the actual out-of-pocket Loss or the anticipated potential Loss (including any costs or expenses, along with the method of calculation thereof, which have been or may be reasonably incurred in connection therewith), (iii) whether such Loss may be covered (in whole or in part) under any insurance or contractual indemnification rights or other reimbursement arrangements and the estimated amount of such Loss which may be covered under such insurance or contractual indemnification rights or other reimbursement arrangementsLoss, and (iviii) the basis of the CommitteeIndemnified Party’s request for indemnification under the Merger Agreement in reasonable detail, including a reference to the specific provision of the Merger Agreement alleged to have been breached. In accordance with the Merger Agreement, and, if applicable, noting that such Indemnification Claim is a Blocker Claim (as defined below). Each each such Notice will request that the Escrow Agent distribute all or a portion of the Escrow Fund Shares (the “Distribution Request Amount”) to Harmony the Indemnified Party in satisfaction of the amount of such Indemnification Claim, subject to the limitations, procedures and obligations required by Article IX X of the Merger Agreement, together with a copy of any other documentation required pursuant to the terms of the Merger Agreement. (ii) If the Stockholders’ Representative provides a notice to the Committee Parent (with a copy to the Escrow Agent) (a “Counter Notice”), within thirty (30) days following the date of the Notice (such thirty (30)-day period, the “Representative Review Period”), disputing all or a portion of the matters or amounts described in the Notice, the Stockholders’ Representative and the Committee Parent shall attempt to resolve such dispute by voluntary settlement as provided in Section 4(b5(b) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from the Committee within the Representative Review Period, then the Distribution Request Amount in the Indemnification Claim shall be deemed to be an Established Claim (defined below) for purposes of this Agreement and if a Counter Notice is delivered disputing only a portion of the matters or amounts described in the Notice, the undisputed portion of the Distribution Request Amount pertaining to such Indemnification Claim shall be deemed to be an Established Claim. (iii) As used in this Agreement, “Established Claim” means any (i) portion of any Distribution Request Amount that (x) is not disputed pursuant to Section 4(a)(ii5(a)(ii) above, (ii) portion of any Distribution Request Amount that is resolved by mutual resolution pursuant to Sections 4(b)(i5(b)(i) and (ii), resulting in an award to Harmonyan Indemnified Party, or (iii) portion of any Distribution Request Amount that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction. Notwithstanding anything herein to the contrary, each Indemnification Claim shall be subject to the limitations, procedures and obligations set forth in Article IX X of the Merger Agreement, and no portion of any Indemnification Claim made pursuant to Section 10.1 of the Merger Agreement may be deemed to be an Established Claim or otherwise payable under Article IX X of the Merger Agreement unless and until the aggregate amount of all indemnifiable Losses under Section 9.4(d) of the Merger Agreement exceeds the Deductible, in which event the Distribution Request Amount of such Indemnity Claim must only include Losses incurred in excess of such Deductible. The Owners’ aggregate liability for Losses shall not in any event exceed the value of the Escrow FundBasket.

Established Claims. (i) If, at any time on or before prior to the end expiration of the Escrow PeriodPeriod (as defined below), any Parent Indemnitee (as defined in the Merger Agreement) Indemnified Party is entitled to make a claim for indemnification pursuant to, and subject to the limitations set forth in, Article IX VII of the Merger Agreement (an “"Indemnification Claim”"), after fully complying with the procedures and obligations required therein, the Committee may deliver written notice to the Representative (each each, a “"Notice”"), with a copy to the Escrow Agent, that contains (i) a description, in reasonable detail, of the nature of the Indemnification Claim, (ii) the total amount of the actual out-of-pocket Loss sought in respect of such Indemnification Claim, or, in the case of an out-of-pocket Loss that may arise from a cause of action or claim that has actually been asserted against a Parent Indemnified Party by a third party, the total amount (or range of amounts) asserted by such third party in the applicable asserted cause of action or claim or the reasonably anticipated potential Loss to be actually incurred by such Parent Indemnified Party in connection therewith (including any costs or expenses, along with the method of calculation thereof, which have been or may be reasonably incurred by such Parent Indemnified Party in connection therewith) (the "Potential Loss Amount") (it being understood, however, that notwithstanding the assertion of a Potential Loss Amount in a Notice, no Parent Indemnified Party shall be entitled to receive any portion of the Escrow Fund on account of a Potential Loss Amount unless and until the Losses related to such Potential Loss Amount are paid or incurred by such Parent Indemnified Party), in each case, calculated in accordance with the Merger Agreement, (iii) whether such Loss may be covered (in whole or in part) under any insurance or contractual indemnification rights or other reimbursement arrangements and the estimated amount of such Loss which may be covered under such insurance or contractual indemnification rights or other reimbursement arrangements, and (iv) the basis of the Committee’s 's request for indemnification under the Merger Agreement in reasonable detail, including a reference to the specific provision of the Merger Agreement alleged to have been breached, and, if applicable, noting that such Indemnification Claim is a Blocker Claim (as defined below). Each such Notice will request that the Escrow Agent release and distribute all or a portion of the Escrow Shares and the Escrow Cash from the Escrow Fund (the “"Distribution Request Amount”") to Harmony Holdco in satisfaction of the amount of the Loss for such Indemnification ClaimClaim set forth in such Notice (other than a Potential Loss Amount) and/or to continue to hold in the Indemnity Escrow Account the Potential Loss Amount (each referred to in clause (ii) above), subject to the limitations, procedures and obligations required by Article IX VII of the Merger Agreement, together with a copy of any other documentation required pursuant to the terms of the Merger Agreement. (ii) If ; provided, however, that a Notice may only request release and distribution of Escrow Shares and Escrow Cash in respect of an actual out-of-pocket Loss actually incurred by a Parent Indemnified Party. The "Escrow Period" shall mean the Representative provides a notice to the Committee (with a copy to the Escrow Agent) (a “Counter Notice”), within thirty (30) days following period commencing on the date of the Notice (such thirty (30)-day period, the “Representative Review Period”), disputing all or a portion of the matters or amounts described in the Notice, the Representative and the Committee shall attempt to resolve such dispute by voluntary settlement as provided in Section 4(b) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from the Committee within the Representative Review Period, then the Distribution Request Amount in the Indemnification Claim shall be deemed to be an Established Claim (defined below) for purposes of this Agreement and if a Counter Notice ending on the date that is delivered disputing only a portion the one (1) year anniversary of the matters or amounts described in the Notice, the undisputed portion date of the Distribution Request Amount pertaining to such Indemnification Claim shall be deemed to be an Established Claim. (iii) As used in this Agreement, “Established Claim” means any (i) portion of any Distribution Request Amount that is not disputed pursuant to Section 4(a)(ii) above, (ii) portion of any Distribution Request Amount that is resolved by mutual resolution pursuant to Sections 4(b)(i) and (ii), resulting in an award to Harmony, or (iii) portion of any Distribution Request Amount that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction. Notwithstanding anything herein to the contrary, each Indemnification Claim shall be subject to the limitations, procedures and obligations set forth in Article IX of the Merger Agreement, and no portion of any Indemnification Claim may be deemed to be an Established Claim or otherwise payable under Article IX of the Merger Agreement unless and until the aggregate amount of all indemnifiable Losses under Section 9.4(d) of the Merger Agreement exceeds the Deductible, in which event the Distribution Request Amount of such Indemnity Claim must only include Losses incurred in excess of such Deductible. The Owners’ aggregate liability for Losses shall not in any event exceed the value of the Escrow Fund.

Established Claims. (i) If, at any time on or before the end of the Escrow Period12-month anniversary of the Closing, any Parent Indemnitee Indemnified Party (as defined in the Merger Agreement) is entitled to make a claim for indemnification pursuant to Article IX X of the Merger Agreement (an “Indemnification Claim”), after fully complying with the procedures and obligations required therein, the Committee Purchaser may deliver written notice to the Stockholder Representative (each a “Notice”), with a copy to the Escrow Agent, that contains (i) a description, in reasonable detail, of the nature of the Indemnification Claim, (ii) the total amount of the actual out-of-pocket Loss or the anticipated potential Loss (including any costs or expenses, along with the method of calculation thereof, which have been or may be reasonably incurred in connection therewith), (iii) whether such Loss may be covered (in whole or in part) under any insurance or contractual indemnification rights or other reimbursement arrangements and the estimated amount of such Loss which may be covered under such insurance or contractual indemnification rights or other reimbursement arrangementsLoss, and (iviii) the basis of the CommitteePurchaser’s request for indemnification under the Merger Agreement in reasonable detail, including a reference to the specific provision of the Merger Agreement alleged to have been breached. In accordance with the Merger Agreement, and, if applicable, noting that such Indemnification Claim is a Blocker Claim (as defined below). Each each such Notice will request that the Escrow Agent distribute all or a portion of the Escrow Fund Shares (the “Distribution Request Amount”) to Harmony Purchaser in satisfaction of the amount of such Indemnification Claim, subject to the limitations, procedures and obligations required by Article IX X of the Merger Agreement, together with a copy of any other documentation required pursuant to the terms of the Merger Agreement. (ii) If the Stockholder Representative provides a notice to the Committee Purchaser (with a copy to the Escrow Agent) (a “Counter Notice”), within thirty (30) days following the date of the Notice (such thirty (30)-day period, the “Representative Review Period”), disputing all or a portion of the matters or amounts described in the Notice, the Stockholder Representative and the Committee Purchaser shall attempt to resolve such dispute by voluntary settlement as provided in Section 4(b5(b) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from the Committee within the Representative Review Period, then the Distribution Request Amount in the Indemnification Claim shall be deemed to be an Established Claim (defined below) for purposes of this Agreement and if a Counter Notice is delivered disputing only a portion of the matters or amounts described in the Notice, the undisputed portion of the Distribution Request Amount pertaining to such Indemnification Claim shall be deemed to be an Established Claim. (iii) As used in this Agreement, “Established Claim” means any (i) portion of any Distribution Request Amount that is not disputed pursuant to Section 4(a)(ii5(a)(ii) above, (ii) portion of any Distribution Request Amount that is resolved by mutual resolution pursuant to Sections 4(b)(i5(b)(i) and (ii), resulting in an award to HarmonyPurchaser, or (iii) portion of any Distribution Request Amount that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction. Notwithstanding anything herein to the contrary, each Indemnification Claim shall be subject to the limitations, procedures and obligations set forth in Article IX of the Merger Agreement, and no portion of any Indemnification Claim may be deemed to be an Established Claim or otherwise payable under Article IX of the Merger Agreement unless and until the aggregate amount of all indemnifiable Losses under Section 9.4(d) of the Merger Agreement exceeds the Deductible, in which event the Distribution Request Amount of such Indemnity Claim must only include Losses incurred in excess of such Deductible. The Owners’ aggregate liability for Losses shall not in any event exceed the value of the Escrow Fund.or