Common use of Holdback Amount Clause in Contracts

Holdback Amount. The Holdback Amount shall be held by Seller Representative as a fund from which Seller Representative shall, in its sole discretion, (a) reimburse itself for or pay directly any out-of-pocket fees, expenses or costs it incurs in performing its duties and obligations under this Agreement and the Ancillary Documents, including out-of-pocket fees and expenses incurred pursuant to the procedures and provisions set forth herein and legal and consultant fees, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant to this Agreement or any Ancillary Document (and not, for the avoidance of doubt, as compensation for the performance of its duties and obligations under this Agreement and the Ancillary Documents) or (b) satisfy any other obligation or liability of any Security Holder under this Agreement or any Ancillary Document as set forth herein (provided that, for the avoidance of doubt, Seller Representative shall be entitled to do so in its sole discretion and shall have no obligation to satisfy any other obligation or liability of any Security Holder in priority to the items in clause (a) above or at all). Each Security Holder acknowledges that Seller Representative will not be liable for any loss of principal of the Holdback Amount except to the extent finally determined by a court of competent jurisdiction (not subject to further appeal) to have resulted directly and exclusively from Seller Representative’s fraud or willful misconduct. At such time as Seller Representative deems appropriate in its sole discretion, Seller Representative shall pay to each Security Holder his, her or its Pro Rata Share of all or any portion of the remaining Holdback Amount.

Holdback Amount. The Holdback Amount shall be held by Seller Representative as a fund from which Seller Representative shall, in its sole discretion, (a) reimburse itself for or pay directly Any payment that the Shareholders are obligated to make to any out-of-pocket fees, expenses or costs it incurs in performing its duties and obligations under this Agreement and the Ancillary Documents, including out-of-pocket fees and expenses incurred pursuant to the procedures and provisions set forth herein and legal and consultant fees, expenses and costs for reviewing, analyzing and defending any claim or process arising under or Buyer Indemnitees pursuant to this Agreement or Article IX shall, first, to the extent that the Holdback Amount is greater than the indemnity payment, be paid to the Buyer Indemnitiees by an offset of such amount against the Holdback Amount otherwise due to the Shareholders and accordingly will reduce the Holdback Amount and, secondly, to the extent that any Ancillary Document additional sums are due after the offset against the Holdback Amount, the Shaerholders (and notas Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees by wire transfer of immediately available funds within five (5) business days after demand by the Buyer Indemnitees. On the Release Date, Buyer shall pay the remaining Holdback Amount (to the extent not offset for indemnity payments due from any of the avoidance Shareholders) to the Shareholders by wire transfer of doubtimmediately available funds; provided, as compensation however, Buyer shall retain an amount equal to the amount of claims for the performance of its duties and obligations indemnification under this Agreement and the Ancillary Documents) or (b) satisfy any other obligation or liability of any Security Holder under this Agreement or any Ancillary Document as set forth herein (provided that, for the avoidance of doubt, Seller Representative shall be entitled to do so in its sole discretion and shall have no obligation to satisfy any other obligation or liability of any Security Holder in priority Article IX asserted prior to the items in clause Release Date but not yet resolved (a) above or at all“Unresolved Claims”). Each Security Holder acknowledges that Seller Representative Buyer will not be liable for any loss of principal pay the portion of the Holdback Amount except retained for Unresolved Claims to the Shareholders, to the extent finally determined by a court of competent jurisdiction (not subject to further appeal) to have resulted directly and exclusively from Seller Representative’s fraud or willful misconduct. At such time as Seller Representative deems appropriate in its sole discretion, Seller Representative shall pay to each Security Holder his, her or its Pro Rata Share of all or any the portion of the remaining Holdback AmountAmount is not utilized as payment for such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IX.

Holdback Amount. The Each Seller hereby acknowledges and agrees that the Holdback Amount shall be held withheld and paid directly to an account maintained by Seller the Representative (or a financial institution selected by the Representative) as a fund from which Seller Representative shall, in its sole discretion, (a) reimburse itself for or pay directly any out-of-pocket fees, expenses or costs it incurs in performing its duties and obligations under this Agreement and the Ancillary Documents, including out-of-pocket fees and expenses (including any legal fees and expenses) of the Representative incurred in connection with this Agreement, with any balance of the Holdback Amount not utilized for such purposes to be returned to the Sellers in accordance with their Pro Rata Percentage; provided, however, that in no event shall any portion of the Holdback Amount be returned to the Sellers prior to the final determination of the Cash Payment pursuant to Section 1.05 and the full payment of the amount owed by the Representative to Buyer, if any, pursuant to Section 1.04. In the event that the Holdback Amount shall be insufficient to satisfy the fees and expenses of the Representative or any amounts owed by the Representative to Buyer hereunder (including pursuant to Sections 1.04 or 5.04), and in the event there are any remaining funds in the Escrow Amount to be distributed to the Sellers immediately prior to the final distribution from the Escrow Amount to the Sellers pursuant to the procedures and provisions set forth herein and legal and consultant feesEscrow Agreement, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant to this Agreement or any Ancillary Document (and not, for the avoidance of doubt, as compensation for the performance of its duties and obligations under this Agreement and the Ancillary Documents) or (b) satisfy any other obligation or liability of any Security Holder under this Agreement or any Ancillary Document as set forth herein (provided that, for the avoidance of doubt, Seller Representative shall be entitled to do so in its sole discretion and shall have no obligation to satisfy recover any other obligation or liability of any Security Holder in priority to such expenses from the items in clause (a) above or at all). Each Security Holder acknowledges that Seller Representative will not be liable for any loss of principal of the Holdback Escrow Amount except to the extent finally determined by a court of competent jurisdiction (not subject such funds prior to further appeal) the distribution of funds to have resulted directly and exclusively the Sellers; provided, that in no event shall the Representative be entitled to recover such expenses from Seller Representative’s fraud the Escrow Fund prior to the distribution of the then-remaining Escrow Funds, if any, to the Representative or willful misconductthe Sellers, as applicable, pursuant to the Escrow Agreement. At such time as Seller Representative deems appropriate in its sole discretion, Seller The Representative shall pay be entitled to each Security Holder his, her recover any remaining expenses or its amounts directly from the Sellers (based on such Seller’s Pro Rata Share of all or any portion of the remaining Holdback AmountPercentage).

Holdback Amount. The Each Seller hereby acknowledges and agrees that the Holdback Amount shall be held withheld from the Estimated Purchase Price as set forth in the Estimated Closing Date Statement and shall be paid by Seller Purchaser directly to an account maintained by the Sellers’ Representative (or a financial institution selected by the Sellers’ Representative) as a fund from which Seller Representative shall, in its sole discretion, (a) reimburse itself for or pay directly any out-of-pocket fees, expenses or costs it incurs in performing its duties and obligations under this Agreement and the Ancillary Documents, including out-of-pocket fees and expenses (including, without limitation, any legal fees and expenses) of the Sellers’ Representative incurred pursuant in connection with this Agreement, with any balance of the Holdback Amount not utilized for such purposes to be returned to the procedures Sellers in accordance with their Pro Rata Share; provided, however, that in no event shall any portion of the Holdback Amount be returned to the Sellers prior to twenty-four (24) months after the Closing. If the Holdback Amount shall be insufficient to satisfy the fees and provisions set forth herein expenses of the Sellers’ Representative, and legal and consultant feesif there are any remaining funds in the Indemnity Escrow Account to be distributed to the Sellers immediately prior to the final distribution from the Indemnity Escrow Account to the Sellers, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant to this Agreement or any Ancillary Document (and not, for then the avoidance of doubt, as compensation for the performance of its duties and obligations under this Agreement and the Ancillary Documents) or (b) satisfy any other obligation or liability of any Security Holder under this Agreement or any Ancillary Document as set forth herein (provided that, for the avoidance of doubt, Seller Sellers’ Representative shall be entitled to do so in its sole discretion and shall have no obligation to satisfy recover any other obligation or liability of any Security Holder in priority to such expenses from the items in clause (a) above or at all). Each Security Holder acknowledges that Seller Representative will not be liable for any loss of principal of the Holdback Amount except Indemnity Escrow Account to the extent finally determined by a court of competent jurisdiction (not subject such funds prior to further appeal) the distribution of funds to have resulted directly and exclusively from Seller Representative’s fraud or willful misconductthe Sellers. At such time as Seller Representative deems appropriate in its sole discretion, Seller The Sellers’ Representative shall pay be entitled to each Security Holder his, her or its Pro Rata Share of all or recover any portion of remaining expenses directly from the remaining Holdback AmountSellers.

Holdback Amount. The Each Seller hereby acknowledges and agrees that the Holdback Amount shall be held withheld and paid directly to an account maintained by Seller the Representative (or a financial institution selected by the Representative) as a fund from which Seller Representative shall, in its sole discretion, (a) reimburse itself for or pay directly any out-of-pocket fees, expenses or costs it incurs in performing its duties and obligations under this Agreement and the Ancillary Documents, including out-of-pocket fees and expenses (including any legal fees and expenses) of the Representative incurred in connection with this Agreement, with any balance of the Holdback Amount not utilized for such purposes to be returned to the Sellers in accordance with their Pro Rata Percentage; provided, however, that in no event shall any portion of the Holdback Amount be returned to the Sellers prior to the final determination of the Cash Payment pursuant to Section 1.05 and the full payment of the amount owed by the Representative to Buyer, if any, pursuant to Section 1.04. In the event that the Holdback Amount shall be insufficient to satisfy the fees and expenses of the Representative, and in the event there are any remaining funds in the Escrow Amount to be distributed to the Sellers immediately prior to the final distribution from the Escrow Amount to the Sellers pursuant to the procedures and provisions set forth herein and legal and consultant feesEscrow Agreement, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant to this Agreement or any Ancillary Document (and not, for the avoidance of doubt, as compensation for the performance of its duties and obligations under this Agreement and the Ancillary Documents) or (b) satisfy any other obligation or liability of any Security Holder under this Agreement or any Ancillary Document as set forth herein (provided that, for the avoidance of doubt, Seller Representative shall be entitled to do so in its sole discretion and shall have no obligation to satisfy recover any other obligation or liability of any Security Holder in priority to such expenses from the items in clause (a) above or at all). Each Security Holder acknowledges that Seller Representative will not be liable for any loss of principal of the Holdback Escrow Amount except to the extent finally determined by a court of competent jurisdiction (not subject such funds prior to further appeal) the distribution of funds to have resulted directly and exclusively the Sellers provided, that in no event shall the Representative be entitled to recover such expenses from Seller Representative’s fraud the Indemnity Escrow Fund prior to the distribution of the then-remaining Indemnity Escrow Fund, if any, to the Representative or willful misconductthe Sellers, as applicable, pursuant to the Escrow Agreement. At such time as Seller Representative deems appropriate in its sole discretion, Seller The Representative shall pay be entitled to each Security Holder his, her recover any remaining expenses or its amounts directly from the Sellers (based on such Seller’s Pro Rata Share of all or any portion of the remaining Holdback AmountPercentage).