Common use of Satisfaction of Claims Clause in Contracts

Satisfaction of Claims. (i) Except for Exempted Losses, claims by an Indemnified Party for Losses shall be satisfied solely from the Escrow Account. Claims by an Indemnified Party for Exempted Losses, shall be satisfied: (A) first, from the Escrow Account, but only after (1) satisfying all other pending claims that are not claims for Exempted Losses, and (2) making appropriate reserve as provided herein for any then unresolved claims that are not claims for Exempted Losses, and (B) second, if the Escrow Account is insufficient after such satisfaction or reserve, (1) in the case of Fraud, at the election of the Indemnified Party and in any combination the Indemnified Party elects, directly from each Company Holder, severally in accordance with such holder’s Pro Rata Portion of the Losses, up to the aggregate proceeds received by such Company Holder hereunder and/or directly and individually from such Person or Persons committing such Fraud, jointly and severally among such Persons, without limit, and (2) in the case of Exempted Losses other than Fraud, directly from each Company Holder, severally in accordance with such holder’s Pro Rata Portion of the Losses, in an amount not to exceed the aggregate proceeds received by such Company Holder hereunder. (ii) The representations and warranties, covenants and obligations of Company, and the rights and remedies that may be exercised by the Indemnified Parties, will not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Indemnified Parties or any of their Affiliates. Such representations and warranties, covenants and obligations will not be affected or deemed waived by reason of the fact that the Indemnified Parties knew or should have known that any representation or warranty might be inaccurate or that the Indemnifying Party failed to comply with any agreement or covenant. Any investigation by such party will be for its own protection only and will not affect or impair any right or remedy hereunder.

Satisfaction of Claims. With respect to each Claim made for payment to LTFS and the Companies by Zwigard that is either undisputed or finally resolved pursuant to the procedures set forth in Section 6.5(a), in whole or in part, in favor of LTFS, Zwigard shall have the option, in his sole discretion, to satisfy such Claim through either (A) a payment of cash directly to LTFS, (B) a release of all or any portion of the Escrowed Payments with respect to such Claim to LTFS as hereinafter provided, and/or (C) offset on a dollar for dollar basis, payments thereafter due, in the order due, under the Note (by written notice of such offset from Zwigard), and/or (D) any combination of the methods identified in the preceding clauses (A) (B) and/or (C) (except that the method identified in clause (C) shall, in all events, only be exercised if and to the extent that all Escrowed Payments properly placed in escrow by LTFS as provided herein with respect to such Claim have been fully released to LTFS as hereinafter provided), in each case, so long as the aggregate amount delivered to LTFS pursuant to any of the preceding methods equals the amount of such Claim, if undisputed, or the amount that has been so resolved in favor of LTFS with respect to such Claim. If Zwigard elects the release of Escrowed Payments as one of the methodologies for satisfying any such Claim, then the Escrow Agent shall be directed jointly by Zwigard and LTFS, pursuant to and in accordance with the terms of the Escrow Agreement, to promptly release to LTFS from such Escrowed Payments an amount which, after application of any payments made by or on behalf of Zwigard pursuant to the method described in the preceding clause (A), shall equal the lesser of (i) Except the amount of such Claim, if undisputed, or the amount that has been so resolved in favor of LTFS with respect to such Claim, in either case, plus any and all interest earned on such Escrowed Payments or (ii) the aggregate balance of such Escrowed Payments plus any and all interest earned thereon. If (I) a Claim made for Exempted Lossespayment by Zwigard is finally resolved in favor of Zwigard, claims by an Indemnified Party for Losses shall be satisfied solely from or (II) any portion of the Escrow Account. Claims by an Indemnified Party for Exempted LossesEscrowed Payments with respect to a Claim that is finally resolved, shall be satisfied: in whole or in part, in favor of LTFS and/or any interest earned thereon remain in escrow after satisfaction of such Claim pursuant to any of the methods identified in the preceding clauses (A) first, from the Escrow Account, but only after (1) satisfying all other pending claims that are not claims for Exempted Losses, and (2) making appropriate reserve as provided herein for any then unresolved claims that are not claims for Exempted Losses, and or (B) secondand/or any combination thereof, if the Escrow Account is insufficient after such satisfaction or reserveAgent shall be directed jointly by Zwigard and LTFS, (1) pursuant to and in accordance with the terms of the Escrow Agreement, to promptly release to Zwigard, in the case of Fraudthe preceding clause (I), at the election of the Indemnified Party and in any combination the Indemnified Party elects, directly from each Company Holder, severally in accordance with such holder’s Pro Rata Portion of the Losses, up to the aggregate proceeds received by amount of all Escrowed Payments with respect to such Company Holder hereunder and/or directly Claim together with any and individually from such Person or Persons committing such Fraudall interest earned thereon, jointly and severally among such Personsor, without limit, and (2) in the case of Exempted Losses other than Fraudthe preceding clause (II), directly from each Company Holder, severally in accordance with the aggregate of all such holder’s Pro Rata Portion remaining escrowed amounts. All released portions of the Losses, in an amount Escrowed Payments to LTFS (but not any interest earned thereon) and all payments due under the Note that are offset by Zwigard as hereinabove provided shall be deemed to exceed the aggregate proceeds received by such Company Holder hereunder. (ii) The representations and warranties, covenants and obligations of Company, and the rights and remedies that may be exercised by the Indemnified Parties, will not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any reductions of the Indemnified Parties or any of their Affiliates. Such representations Purchase Price and warranties, covenants and obligations will not be affected or deemed waived by reason of the fact that corresponding principal and interest amounts originally due under the Indemnified Parties knew or should have known that Note to the extent thereof. All released portions of the Escrowed Payments to Zwigard (but not any representation or warranty might interest earned thereon), shall be inaccurate or that deemed to be payments made upon the Indemnifying Party failed Note to comply with any agreement or covenant. Any investigation by such party will be for its own protection only and will not affect or impair any right or remedy hereunderthe extent thereof.

Satisfaction of Claims. (i) Except for Exempted Losses, claims by an Indemnified Party for Losses shall be satisfied solely from by reducing the Escrow AccountHoldback Amount by an amount equal to such Loss. Claims by an Indemnified Party for Exempted Losses, shall be satisfied: (Ai) first, from by reducing the Escrow AccountHoldback Amount by an amount equal to such Loss, but only after (1A) satisfying all other pending claims that are not claims for related to Exempted Losses, and (2B) making appropriate reserve as provided herein for any then unresolved claims that are not claims for related to Exempted Losses, and (Bii) second, if the Escrow Account remaining Holdback Amount is insufficient after such satisfaction or reserve, (1A) in the case of Fraud, at the election of the Indemnified Party and in any combination the Indemnified Party elects, directly from each the Company Holder, severally in accordance with such holder’s Pro Rata Portion of the Losses, Holders based on their Indemnity Allocation Percentages on a several and not joint basis by cash payment to Parent up to the aggregate proceeds received by such Company Holder Holders hereunder and/or has been recovered by Parent, and if excess Losses from Fraud remain, then directly and individually from such Person or Persons committing such Fraud, jointly and severally among such Persons, Fraud without limit; provided, however, that if an Indemnified Party cannot recover Losses from Fraud from each Company Holder based on such Company Holder’s Indemnity Allocation Percentage, nothing herein shall limit the Indemnified Party’s ability to recover all Losses from Fraud directly from such Person or Persons committing such Fraud and (2B) in the case of all other Exempted Losses other than FraudLosses, directly from each the Company HolderHolders based on their Indemnity Allocation Percentages on a several and not joint basis by cash payment to Parent; provided, severally in accordance with however, that the aggregate amount of any such holder’s Pro Rata Portion cash payments made by a Company Holder shall not exceed the portion of the Losses, in an amount not to exceed the aggregate proceeds Total Merger Consideration received by such Company Holder pursuant to the transactions hereunder. (ii) The representations and warranties, covenants and obligations of the Company, and the rights and remedies that may be exercised by the Indemnified Parties, will not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Indemnified Parties or any of their Affiliates. Such representations and warranties, covenants and obligations will not be affected or deemed waived by reason of the fact that the Indemnified Parties knew or should have known that any representation or warranty might be inaccurate or that the Indemnifying Party failed to comply with any agreement or covenant. Any investigation by such party will be for its own protection only and will not affect or impair any right or remedy hereunder.

Satisfaction of Claims. (i) Except for Exempted Lossesto the extent that the Indemnifiable Losses resulted from breaches of the Excluded Representations, claims from Excess Dissenting Share Payments, from any Excess Third Party Expenses or from fraud or willful breach, recovery by an Indemnified Party for Indemnifiable Losses pursuant to this Agreement shall be satisfied solely from the Indemnification Escrow AccountFund in accordance with, and subject to the limitations of Section 8.3(h). Claims by Notwithstanding the immediately preceding sentence, Indemnifiable Losses resulting from breaches of the Excluded Representations, from Excess Dissenting Share Payments, from any Excess Third Party Expenses or from fraud or willful breach, shall be satisfied first from the Indemnification Escrow Fund in accordance with, and subject to the limitations of Section 8.3(h); provided, however, that in the event that the Indemnification Escrow Fund is not sufficient to satisfy the Indemnifiable Losses resulting from breaches of the Excluded Representations, from Excess Dissenting Share Payments, from any Excess Third Party Expenses or from fraud or willful breach, such Indemnifiable Losses may be satisfied in any manner available to an Indemnified Party for Exempted Lossesat law or in equity, including claims directly against any Stockholder; provided, further, that the liability of the Stockholders in excess of the Indemnification Escrow Fund shall be satisfied: (A) firstseveral but not joint with respect to such Stockholders; provided, from the Escrow Accountfurther, but only after (1) satisfying all other pending claims that are not claims for Exempted Losses, and (2) making appropriate reserve as provided herein for any then unresolved claims that are not claims for Exempted Losses, and (B) second, if the Escrow Account is insufficient after such satisfaction or reserve, (1) liability in the case of Fraud, at the election excess of the Indemnified Party and in any combination the Indemnified Party elects, directly from each Company Holder, severally in accordance Indemnification Escrow Fund with such holder’s Pro Rata Portion respect to a breach of the Losses, up to the aggregate proceeds received by such Company Holder hereunder and/or directly and individually from such Person or Persons committing such Fraud, jointly and severally among such Persons, without limit, and (2) in the case of Exempted Losses other than Fraud, directly from each Company Holder, severally in accordance with such holder’s Pro Rata Portion of the Losses, in an amount not to exceed the aggregate proceeds received by such Company Holder hereunder. (ii) The representations and warranties, covenants and obligations warranties regarding the ownership of Company, and the rights and remedies that may Company Capital Stock by a Stockholder shall be exercised by the Indemnified Parties, will not be limited recoverable only against such Stockholder or otherwise affected by its successors or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Indemnified Parties or any of their Affiliates. Such representations and warranties, covenants and obligations will not be affected or deemed waived by reason of the fact that the Indemnified Parties knew or should have known that any representation or warranty might be inaccurate or that the Indemnifying Party failed to comply with any agreement or covenant. Any investigation by such party will be for its own protection only and will not affect or impair any right or remedy hereunderassigns.

Satisfaction of Claims. (ia) Except Subject to the other applicable provisions regarding indemnification contained in this Article IX, and except as may be provided otherwise in the Holder Support Agreements, if the Indemnifying Parties are obligated to reimburse or compensate the Indemnified Parties for Exempted Lossesany Losses in connection with a claim by any of the Indemnified Parties under Section 9.2(a), claims by an Indemnified Party other than Section 9.2(a)(vii) solely with respect to Specified Tax Matters, then indemnification for such Losses shall shall, subject to the applicable limitations, if any, set forth in this Article IX, be satisfied solely first from the then-remaining portion of the Escrow Fund, with each Indemnifying Party bearing his, her, or its Pro Rata Portion of such Losses through forfeiture of his, her, or its interest in any then-remaining cash in the Escrow Fund and, second by asserting claims to recover directly against one or more Indemnifying Parties, in each case, subject to the limitations set forth in this Article IX. (b) In the event of an Unobjected Claim or a Settlement Memorandum, Acquiror and the Securityholder Representative shall, as promptly as practicable thereafter (and in any event within two (2) Business Days thereafter), deliver a joint written instruction to the Escrow Agent to release to Acquiror from the Escrow AccountFund an amount of cash equal to the amount of Losses set forth in the Unobjected Claim or Settlement Memorandum, as applicable. Claims by an Indemnified Party for Exempted Losses, shall be satisfied: (A) first, from If the cash then remaining in the Escrow AccountFund is insufficient to cover the full amount of Losses set forth in such Unobjected Claim or set forth in a Settlement Memorandum, but only after (1) satisfying all other pending claims that are not claims for Exempted Lossesthen, and (2) making appropriate reserve as provided herein for any then unresolved claims that are not claims for Exempted Losses, and (B) secondsubject to the applicable limitations, if the Escrow Account is insufficient after any, set forth in this Article IX, each Indemnifying Party shall, within fifteen (15) Business Days, pay Acquiror an amount in cash equal to such satisfaction or reserve, (1) in the case of Fraud, at the election of the Indemnified Party and in any combination the Indemnified Party elects, directly from each Company Holder, severally in accordance with such holderIndemnifying Party’s Pro Rata Portion of such Losses that are in excess of the Losses, up cash then-remaining in the Escrow Fund solely to the aggregate proceeds received by extent such Company Holder hereunder and/or directly and individually from Indemnifying Party is liable to pay such Person or Persons committing such Fraud, jointly and severally among such Persons, without limit, and (2) in the case of Exempted Losses other than Fraud, directly from each Company Holder, severally in accordance with such holder’s Pro Rata Portion of the Losses, in an excess amount not to exceed the aggregate proceeds received by such Company Holder hereunder. (ii) The representations and warranties, covenants and obligations of Company, and the rights and remedies that may be exercised by the Indemnified Parties, will not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Indemnified Parties or any of their Affiliates. Such representations and warranties, covenants and obligations will not be affected or deemed waived by reason of the fact that the Indemnified Parties knew or should have known that any representation or warranty might be inaccurate or that the Indemnifying Party failed to comply with any agreement or covenant. Any investigation by such party will be for its own protection only and will not affect or impair any right or remedy hereunder.

Satisfaction of Claims. If any Person entitled to indemnification under this Article IX (an "Indemnified Party") desires to assert any claim for indemnification or to be held harmless under this Article IX (a "Claim"), the Indemnified Party shall deliver to the Person that is obligated to provide such indemnification (the "Indemnifying Party") notice of its demand for satisfaction of such Claim (a "Request"), specifying in reasonable detail the amount of such Claim and, to the extent practicable under the circumstances, the basis for asserting such Claim. Within 30 days after the Indemnifying Party has been given a Request, the Indemnifying Party shall either (i) Except for Exempted Losses, claims satisfy the Claim requested to be satisfied in such Request by an delivering to the Indemnified Party for Losses shall be satisfied solely from payment by wire transfer or a certified or bank cashier's check payable to the Escrow Account. Claims by an Indemnified Party for Exempted Lossesin immediately available Federal Reserve Funds in an amount equal to the amount of such Claim, shall be satisfied: or (ii) notify the Indemnified Party that the Indemnifying Party contests such Claim by (A) firstdelivering to the Indemnified Party an objection to such Claim, from specifying in reasonable detail, to the Escrow Accountextent practicable under the circumstances, but only after (1) satisfying all other pending claims that are not claims the basis for Exempted Losses, and (2) making appropriate reserve as provided herein for any then unresolved claims that are not claims for Exempted Lossescontesting such Claim, and (B) seconddemanding arbitration of the Claim in accordance with Section 10.11. If the Indemnifying Party fails to satisfy a Claim (or portion of a Claim) within 30 days after the Indemnifying Party has been given a Request with respect to such Claim, if and whether or not the Escrow Account is insufficient after Indemnifying Party has contested such satisfaction or reserveClaim, (1) in the case of Fraud, at the election of Indemnifying Party shall pay the Indemnified Party and in any combination asserting such Claim interest on the Indemnified Party electsunpaid amount of such Claim (or unpaid portion of a Claim) at the Prime Rate, directly computed from each Company Holder, severally in accordance with the date such holder’s Pro Rata Portion of the Losses, up Request was given to the aggregate proceeds received by Indemnifying Party to the date such Company Holder hereunder and/or directly and individually from such Person Claim (or Persons committing such Fraudportion of a Claim) is satisfied; provided, jointly and severally among such Personshowever, without limit, and (2) in the case of Exempted Losses other than Fraud, directly from each Company Holder, severally in accordance with such holder’s Pro Rata Portion of the Losses, in an amount not to exceed the aggregate proceeds received by such Company Holder hereunder. (ii) The representations and warranties, covenants and obligations of Company, and the rights and remedies that may be exercised by the Indemnified Parties, will not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Indemnified Parties or any of their Affiliates. Such representations and warranties, covenants and obligations will not be affected or deemed waived by reason of the fact that the Indemnified Parties knew or should have known that any representation or warranty might be inaccurate or that the Indemnifying Party failed shall not be required to comply with pay the Indemnified Party interest on that part of any agreement unpaid Claim (or covenant. Any investigation by such party will be for its own protection only and will not affect or impair any right or remedy hereunderportion of a Claim) which the Indemnifying Party successfully contests.