Common use of Payment of Indemnification Obligations Clause in Contracts

Payment of Indemnification Obligations. (a) After (a) any final Governmental Order has been rendered by a Governmental Authority of competent jurisdiction, (b) a settlement has been consummated in accordance with this ARTICLE VII, or (c) the Indemnified Party and the Indemnifying Party have arrived at a mutually binding Contract, in each case, with respect to a Third-Party Claim or a Direct Claim, the Indemnified Party shall forward to the Indemnifying Party notice of any amounts due and owing by the Indemnifying Party in accordance with this ARTICLE VII. Any amounts due and owing by Sellers to any Buyer Indemnified Party in accordance with this ARTICLE VII (excluding under Section 7.02(e) solely with respect to Items 3 and 4 on Annex F) shall be paid first by release of funds to the applicable Buyer Indemnified Party from the Indemnification Escrow Fund by the Escrow Agent in accordance with the Escrow Agreement, and any amounts due and owing by Sellers pursuant to Section 7.02(e) solely with respect to Items 3 and 4 on Annex F shall be paid first by release of funds to the applicable Buyer Indemnified Party from the Special Indemnity Escrow Fund by the Escrow Agent in accordance with the Escrow Agreement (and, in each case, Buyer and the Sellers’ Representative shall promptly instruct the Escrow Agent accordingly). If the remaining balance of the Indemnification Escrow Fund or Special Indemnity Escrow Fund, as applicable, is insufficient to pay in full the amounts due and owing by Sellers to any Buyer Indemnified Party in accordance with this ARTICLE VII, then Sellers, Jointly/Severally, shall pay to the applicable Buyer Indemnified Party, within five (5) Business Days after the occurrence of the earliest event to occur that is described in the first sentence of this Section 7.07(a), all such remaining amounts due and owing by Sellers to the applicable Buyer Indemnified Party by wire transfer of immediately available funds to the account designated by Buyer to the Sellers’ Representative in writing. If any amounts are due and owing by Buyer to any Seller Indemnified Party in accordance with this ARTICLE VII, then Buyer shall pay to the applicable Seller Indemnified Party, within five (5) Business Days after the occurrence of the earliest event to occur that is described in the first sentence of this Section 7.07(a), all such amounts due and owing by Buyer to the applicable Seller Indemnified Party by wire transfer of immediately available funds to the account designated by the Sellers’ Representative to Buyer in writing. Notwithstanding anything in this Agreement to the contrary, to the extent that Buyer is entitled to recover any Losses based upon, arising out of, with respect to or by reason of the matters described on Item 2 of Annex F, Buyer shall be entitled to first recover from the Tax Escrow Fund before pursuing any other source of recovery contemplated under this Section 7.07(a). (b) As promptly as practicable, with respect to the Indemnification Escrow Fund, after the date that falls twelve (12) months after the Closing Date, and with respect to the Special Indemnity Escrow Amount, after the date that falls eighteen (18) months after the Closing Date (such date, as applicable, the “Release Date”), the Sellers’ Representative and the Buyer shall jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, an amount, if any, equal to (i) the remaining balance of the Indemnification Escrow Fund or Special Indemnity Escrow Fund, as applicable, minus (ii) the aggregate amount of any claims pursuant to this ARTICLE VII which shall have been asserted by any Buyer Indemnified Party in accordance with this Agreement on or prior to such date and which remain pending on such date (any such claim as of a specified date, a “Pending Claim”), to Sellers in proportion to their respective Pro Rata Shares. To the extent that on or after the applicable Release Date, any amount shall have been reserved and withheld from distribution from the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, on account of a Pending Claim and, subsequent to the applicable Release Date, such Pending Claim is resolved, the Sellers’ Representative and the Buyer shall, within three (3) Business Days of the resolution of such Pending Claim, jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Indemnification Escrow Fund or Special Indemnity Fund, as applicable, to (A) Buyer an amount, if any, equal to the amount of Loss due in respect of such Pending Claim as finally determined and (B) the Sellers’ Representative an amount, if any, equal to (x) the amount then held in the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, after payment to Buyer pursuant to clause (A), minus (y) the aggregate amount of any then remaining Pending Claims, for distribution to the Sellers in proportion to their respective Pro Rata Shares.

Payment of Indemnification Obligations. Except with respect to claims based on fraud, the release of Indemnity Escrow Amounts from the Indemnity Escrow Fund shall be the sole and exclusive post-Closing remedy for Losses available to the Indemnified Parties for any breach of any representation, warranty, covenant or agreement contained in this Agreement or any other Transaction Document, and any and all other matters arising out of, relating to or connected with this Agreement (aor any other Transaction Document), the Company (including its assets and liabilities) After (a) any final Governmental Order has been rendered by a Governmental Authority of competent jurisdictionand the Company Securities, (b) a settlement has been consummated in each case in accordance with this ARTICLE VIIArticle VIII. Without limiting the generality of the foregoing, no Indemnifying Party shall have any liability to an Indemnified Party in connection with this Agreement or any other Transaction Documents or the transactions contemplated hereby or thereby, other than such Indemnifying Party’s pro rata share of the Indemnity Escrow Fund, subject to and in accordance with the terms of this Agreement. In furtherance of the foregoing, Merger Sub and Parent, on behalf of themselves and the other Indemnified Parties (including, following the Closing, the Surviving Corporation), hereby waive, from and after the Closing, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) which such Indemnified Party may have against the Company or any Indemnifying Party arising under or based upon any Law or otherwise (c) except pursuant to the indemnification provisions set forth in this Article VIII). If there should be a dispute as to the amount of Losses, such portion, if any, of the obligation as shall not be subject to dispute, shall be paid to the Indemnified Party from the Indemnity Escrow Funds. At and after such time as the Indemnifying Party have arrived at a mutually binding Contract, in each case, with respect to a Third-Party Claim Indemnity Escrow Fund is exhausted or a Direct Claimreleased, the Indemnified Party shall forward not be entitled to seek indemnity under this Article VIII, and the Indemnifying Indemnified Party notice shall have no further recourse against any Person for such unpaid Losses of any amounts due and owing by the Indemnifying Party in accordance with this ARTICLE VII. Any amounts due and owing by Sellers to any Buyer Indemnified Party in accordance with this ARTICLE VII (excluding under Section 7.02(e) solely except with respect to Items 3 and 4 claims based on Annex F) shall be paid first by release of funds to the applicable Buyer Indemnified Party from the Indemnification Escrow Fund by the Escrow Agent in accordance with the Escrow Agreement, and any amounts due and owing by Sellers pursuant to Section 7.02(e) solely with respect to Items 3 and 4 on Annex F shall be paid first by release of funds to the applicable Buyer Indemnified Party from the Special Indemnity Escrow Fund by the Escrow Agent in accordance with the Escrow Agreement (and, in each case, Buyer and the Sellers’ Representative shall promptly instruct the Escrow Agent accordingly). If the remaining balance of the Indemnification Escrow Fund or Special Indemnity Escrow Fund, as applicable, is insufficient to pay in full the amounts due and owing by Sellers to any Buyer Indemnified Party in accordance with this ARTICLE VII, then Sellers, Jointly/Severally, shall pay to the applicable Buyer Indemnified Party, within five (5) Business Days after the occurrence of the earliest event to occur that is described in the first sentence of this Section 7.07(a), all such remaining amounts due and owing by Sellers to the applicable Buyer Indemnified Party by wire transfer of immediately available funds to the account designated by Buyer to the Sellers’ Representative in writing. If any amounts are due and owing by Buyer to any Seller Indemnified Party in accordance with this ARTICLE VII, then Buyer shall pay to the applicable Seller Indemnified Party, within five (5) Business Days after the occurrence of the earliest event to occur that is described in the first sentence of this Section 7.07(a), all such amounts due and owing by Buyer to the applicable Seller Indemnified Party by wire transfer of immediately available funds to the account designated by the Sellers’ Representative to Buyer in writing. Notwithstanding anything in this Agreement to the contrary, to the extent that Buyer is entitled to recover any Losses based upon, arising out of, with respect to or by reason of the matters described on Item 2 of Annex F, Buyer shall be entitled to first recover from the Tax Escrow Fund before pursuing any other source of recovery contemplated under this Section 7.07(a)fraud. (b) As promptly as practicable, with respect to the Indemnification Escrow Fund, after the date that falls twelve (12) months after the Closing Date, and with respect to the Special Indemnity Escrow Amount, after the date that falls eighteen (18) months after the Closing Date (such date, as applicable, the “Release Date”), the Sellers’ Representative and the Buyer shall jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, an amount, if any, equal to (i) the remaining balance of the Indemnification Escrow Fund or Special Indemnity Escrow Fund, as applicable, minus (ii) the aggregate amount of any claims pursuant to this ARTICLE VII which shall have been asserted by any Buyer Indemnified Party in accordance with this Agreement on or prior to such date and which remain pending on such date (any such claim as of a specified date, a “Pending Claim”), to Sellers in proportion to their respective Pro Rata Shares. To the extent that on or after the applicable Release Date, any amount shall have been reserved and withheld from distribution from the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, on account of a Pending Claim and, subsequent to the applicable Release Date, such Pending Claim is resolved, the Sellers’ Representative and the Buyer shall, within three (3) Business Days of the resolution of such Pending Claim, jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Indemnification Escrow Fund or Special Indemnity Fund, as applicable, to (A) Buyer an amount, if any, equal to the amount of Loss due in respect of such Pending Claim as finally determined and (B) the Sellers’ Representative an amount, if any, equal to (x) the amount then held in the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, after payment to Buyer pursuant to clause (A), minus (y) the aggregate amount of any then remaining Pending Claims, for distribution to the Sellers in proportion to their respective Pro Rata Shares.

Payment of Indemnification Obligations. (a) After (a) any final Governmental Order has been rendered Any amount payable by the Buyer pursuant to this Article VI shall be effected by a Governmental Authority of competent jurisdiction, (b) a settlement has been consummated in accordance with this ARTICLE VII, or (c) the Indemnified Party and the Indemnifying Party have arrived at a mutually binding Contract, in each case, with respect to a Third-Party Claim or a Direct Claim, the Indemnified Party shall forward to the Indemnifying Party notice of any amounts due and owing by the Indemnifying Party in accordance with this ARTICLE VII. Any amounts due and owing by Sellers to any Buyer Indemnified Party in accordance with this ARTICLE VII (excluding under Section 7.02(e) solely with respect to Items 3 and 4 on Annex F) shall be paid first by release of funds to the applicable Buyer Indemnified Party from the Indemnification Escrow Fund by the Escrow Agent in accordance with the Escrow Agreement, and any amounts due and owing by Sellers pursuant to Section 7.02(e) solely with respect to Items 3 and 4 on Annex F shall be paid first by release of funds to the applicable Buyer Indemnified Party from the Special Indemnity Escrow Fund by the Escrow Agent in accordance with the Escrow Agreement (and, in each case, Buyer and the Sellers’ Representative shall promptly instruct the Escrow Agent accordingly). If the remaining balance of the Indemnification Escrow Fund or Special Indemnity Escrow Fund, as applicable, is insufficient to pay in full the amounts due and owing by Sellers to any Buyer Indemnified Party in accordance with this ARTICLE VII, then Sellers, Jointly/Severally, shall pay to the applicable Buyer Indemnified Party, within five (5) Business Days after the occurrence of the earliest event to occur that is described in the first sentence of this Section 7.07(a), all such remaining amounts due and owing by Sellers to the applicable Buyer Indemnified Party by wire transfer of immediately available funds in the amount of any indemnification liability, on or before the seventh (7) day after the final resolution, by agreement or otherwise, of the applicable indemnification claim. (b) If any claim for indemnification is made by the Buyer under this Article VI prior to the expiration of the Escrow Period, (i) the Buyer shall first apply to the Escrow Agent for reimbursement of such claim against the Escrow Amount in accordance with the provisions of the Escrow Agreement and (ii) upon final resolution of such indemnity claims, if such indemnity claims are resolved and fully settled for an amount greater than the amount held in escrow or offset against Contingent Payments as provided in paragraph 6.4(c) below (the "Deficit Amount"), Xxxxx X. Xxxxxx and Xxxxxx Xxxxx jointly and severally, and Stockholders other than Xxxxx X. Xxxxxx and Xxxxxx Xxxxx severally, shall remit the Deficit Amount in cash to the Stockholders' Representative who shall immediately transfer such amounts to the Buyer or to an account designated by Buyer the Buyer. Except for payments from the Escrow Amount or offsets from Contingent Payments pursuant to the Sellers’ Representative in writing. If any amounts are due and owing by Buyer to any Seller Indemnified Party in accordance with this ARTICLE VII, then Buyer shall pay to the applicable Seller Indemnified Party, within five (5c) Business Days after the occurrence of the earliest event to occur that is described in the first sentence of this Section 7.07(a)below, all such amounts due and owing indemnification obligations shall be effected by Buyer to the applicable Seller Indemnified Party by a wire transfer of immediately available funds to on or before the account designated seventh (7) day after the final resolution by the Sellers’ Representative to Buyer in writing. agreement or otherwise. (c) Notwithstanding anything set forth in this Agreement to the contrary, to any amounts that the extent that Buyer is entitled to recover any Losses based uponfor indemnification from the Stockholders pursuant to this Article VI may, arising out of, with respect to or by reason at the option of the matters described on Item 2 Buyer, be satisfied by setting off all or any portion of Annex F, such amount against the Contingent Payment in the amount necessary to satisfy such claim. Any such set- off by the Buyer shall be entitled to first recover from the Tax Escrow Fund before pursuing any other source of recovery contemplated under this Section 7.07(a). (b) As promptly as practicable, with respect subject to the Indemnification Escrow Fundlimits of Section 6.7. If the Stockholders' Representative disputes the Buyer's right to effect such set-off, after the date that falls twelve (12) months after the Closing Date, and with respect to the Special Indemnity Escrow Amount, after the date that falls eighteen (18) months after the Closing Date (such date, as applicable, the “Release Date”), the Sellers’ Representative and the Buyer shall jointly instruct deposit the set-off amount that is being disputed in an escrow account established with a bank or other third party institution reasonably acceptable to the Stockholders' Representative, which funds shall be held by such escrow agent until the dispute is resolved and which shall be funded first by offset against the Contingent Shares and to the extent of any excess, against the Contingent Cash Payment. The parties to this Agreement agree to cooperate with one another in establishing and selecting an escrow agent to act in such capacity and any such escrow agreements shall be substantially similar to the Escrow Agent to disburse by wire transfer of immediately available funds from the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, an amount, if any, equal to (i) the remaining balance of the Indemnification Escrow Fund or Special Indemnity Escrow Fund, as applicable, minus (ii) the aggregate amount of any claims pursuant to this ARTICLE VII which shall have been asserted by any Buyer Indemnified Party in accordance with this Agreement on or prior to such date and which remain pending on such date (any such claim as of a specified date, a “Pending Claim”), to Sellers in proportion to their respective Pro Rata Shares. To the extent that on or after the applicable Release Date, any amount shall have been reserved and withheld from distribution from the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, on account of a Pending Claim and, subsequent to the applicable Release Date, such Pending Claim is resolved, the Sellers’ Representative and the Buyer shall, within three (3) Business Days of the resolution of such Pending Claim, jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Indemnification Escrow Fund or Special Indemnity Fund, as applicable, to (A) Buyer an amount, if any, equal to the amount of Loss due in respect of such Pending Claim as finally determined and (B) the Sellers’ Representative an amount, if any, equal to (x) the amount then held in the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, after payment to Buyer pursuant to clause (A), minus (y) the aggregate amount of any then remaining Pending Claims, for distribution to the Sellers in proportion to their respective Pro Rata Sharesexecuted at Closing.

Payment of Indemnification Obligations. (a) After (a) any final Governmental Order has been rendered by a Governmental Authority of competent jurisdiction, (b) a settlement has been consummated in accordance with this ARTICLE VIIArticle VI, or (c) the Indemnified Party Person and the Indemnifying Party Person have arrived at a mutually binding Contract, in each case, with respect to a Third-Party Claim or a Direct Claim, the Indemnified Party Person shall forward to the Indemnifying Party Person notice of any amounts due and owing by the Indemnifying Party Person in accordance with this ARTICLE VIIArticle VI. Any amounts due and owing by Sellers Securityholders to any Buyer Indemnified Party Person in accordance with this ARTICLE VII (excluding under Section 7.02(e) solely with respect to Items 3 and 4 on Annex F) Article VI, shall be first paid first by Securityholders, Jointly/Severally, by release of funds to the applicable Buyer Indemnified Party Person from the Indemnification Escrow Fund by the Escrow Agent in accordance with the Escrow Agreement, and any amounts due and owing by Sellers pursuant to Section 7.02(e) solely with respect to Items 3 and 4 on Annex F shall be paid first by release of funds to the applicable Buyer Indemnified Party from the Special Indemnity Escrow Fund Account by the Escrow Agent in accordance with the Escrow Agreement (and, in each case, and Buyer and the Sellers’ Securityholder Representative shall promptly instruct the Escrow Agent accordingly). If , and if the remaining balance of the Indemnification Escrow Fund or Special Indemnity Escrow Fund, as applicable, Account is insufficient to pay in full the any such amounts due and owing by Sellers Securityholders to any Buyer Indemnified Party in accordance with this ARTICLE VIIPerson pursuant to Article VI, then Sellersthe Non-ESOP Securityholders, Jointly/Severally, shall pay to the applicable Buyer Indemnified PartyPerson, within five ten (510) Business Days after the occurrence of the earliest event to occur that is described in the first sentence of this Section 7.07(a)6.8, all such remaining amounts due and owing by Sellers Securityholders to the applicable Buyer Indemnified Party Person by wire transfer of immediately available funds to the account designated by Buyer to the Sellers’ Securityholder Representative in writing. For the avoidance of doubt, other than for fraud, the liability of the ESOP under this Article VI shall be solely limited to the ESOP’s Pro Rata Percentage of the Primary Indemnification Escrow Amount. If any amounts are due and owing by Buyer to any Seller Securityholder Indemnified Party Person in accordance with this ARTICLE VIIArticle VI, then Buyer shall pay to the applicable Seller Securityholder Indemnified PartyPerson, within five ten (510) Business Days after the occurrence of the earliest event to occur that is described in the first sentence of this Section 7.07(a)6.8, all such amounts due and owing by Buyer to the applicable Seller Securityholder Indemnified Party Person by wire transfer of immediately available funds to the account designated by the Sellers’ Securityholder Representative to Buyer in writing. Notwithstanding anything in this Agreement to the contrary, to the extent that Buyer is entitled to recover any Losses based upon, arising out of, with respect to or by reason of the matters described on Item 2 of Annex F, Buyer shall be entitled to first recover from the Tax Escrow Fund before pursuing any other source of recovery contemplated under this Section 7.07(a). (b) As promptly as practicable, with respect to the Indemnification Escrow Fund, after the date that falls twelve (12) months after the Closing Date, and with respect to the Special Indemnity Escrow Amount, after the date that falls eighteen (18) months after the Closing Date (such date, as applicable, the “Release Date”), the Sellers’ Representative and the Buyer shall jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, an amount, if any, equal to (i) the remaining balance of the Indemnification Escrow Fund or Special Indemnity Escrow Fund, as applicable, minus (ii) the aggregate amount of any claims pursuant to this ARTICLE VII which shall have been asserted by any Buyer Indemnified Party in accordance with this Agreement on or prior to such date and which remain pending on such date (any such claim as of a specified date, a “Pending Claim”), to Sellers in proportion to their respective Pro Rata Shares. To the extent that on or after the applicable Release Date, any amount shall have been reserved and withheld from distribution from the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, on account of a Pending Claim and, subsequent to the applicable Release Date, such Pending Claim is resolved, the Sellers’ Representative and the Buyer shall, within three (3) Business Days of the resolution of such Pending Claim, jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Indemnification Escrow Fund or Special Indemnity Fund, as applicable, to (A) Buyer an amount, if any, equal to the amount of Loss due in respect of such Pending Claim as finally determined and (B) the Sellers’ Representative an amount, if any, equal to (x) the amount then held in the Indemnification Escrow Fund or the Special Indemnity Escrow Fund, as applicable, after payment to Buyer pursuant to clause (A), minus (y) the aggregate amount of any then remaining Pending Claims, for distribution to the Sellers in proportion to their respective Pro Rata Shares.