Common use of Satisfaction of Indemnification Claims Clause in Contracts

Satisfaction of Indemnification Claims. (i) Subject to Section 10.8(b)(ii), all claims for indemnification under this Article X shall be paid by the indemnifying party on demand in immediately available funds in U.S. dollars after the liability for Damages thereunder have been finally determined. The liability for Damages under any such claims for indemnification shall be deemed to be “finally determined” for purposes of this Article X when the parties to an action have so determined by mutual agreement or, if disputed, when a final non-appealable order of a court having competent jurisdiction has been entered. Upon a determination of liability in respect of a claim of indemnification under this Article X, the indemnifying party shall pay the indemnified party the amount so determined (subject to the limitations hereof) within ten (10) Business Days after the date of determination (such tenth Business Day, the “Due Date”). (ii) Purchaser shall be entitled to receive from the Indemnity Escrow Amount for its own account (or that of the applicable Purchaser Indemnified Party) any indemnification payment amount to which it or any other Purchaser Indemnified Party may be entitled pursuant to this Article X, upon written notice to the Escrow Agent directing the Escrow Agent to immediately release to the indemnified party funds from the Indemnity Escrow Amount equal to such amount in accordance with the terms of the Escrow Agreement (it being understood that any amounts disputed or deemed disputed by Seller or Purchaser shall not be available for release by the Escrow Agent until the claims in respect thereof are finally determined). If any indemnification payment is to be made to any Purchaser Indemnified Party pursuant to this Article X, all such indemnification payments shall be made (i) first from the then-remaining Indemnity Escrow Amount on deposit with the Escrow Agent and (ii) after the Indemnity Escrow Amount has been reduced by any indemnification payments so that no Indemnity Escrow Amount remains on deposit with the Escrow Agent, out-of-pocket from Seller pursuant to Section 10.8(b)(i). If there should be a dispute as to the amount or manner of determination of any indemnity obligation owed under this Agreement, the indemnifying party shall nevertheless pay when due, or Purchaser may (in accordance with the foregoing) obtain from the Indemnity Escrow Amount, as applicable, such portion, if any, (and only such portion) of the obligation as shall not be subject to dispute. The difference, if any, between the amount of the obligation ultimately determined as properly payable under this Agreement and the portion, if any, theretofore paid shall bear interest as provided below in Section 10.8(b)(iii). Upon the payment in full of any claim of indemnification, the indemnifying party or other Person making payment shall be subrogated to the rights of the indemnified party against any Person with respect to the subject matter of such claim for indemnification. (iii) If all or part of any indemnification obligation under this Agreement is not paid when due, then the indemnifying party shall pay the indemnified party interest on the unpaid amount of the obligation for each calendar day from the Due Date until payment in full at a rate per annum equal to the Applicable Rate on the Due Date.

Satisfaction of Indemnification Claims. (i) Subject The Indemnified Parties shall have the right but not the obligation to Section 10.8(b)(ii), all seek satisfaction of claims for indemnification under this Article X shall be paid by from any of the indemnifying party on demand in immediately available funds in U.S. dollars after the liability for Damages thereunder have been finally determined. The liability for Damages under any such claims for indemnification shall be deemed to be “finally determined” for purposes of this Article X when the parties to an action have so determined by mutual agreement orIndemnifying Securityholders, if disputed, when a final non-appealable order of a court having competent jurisdiction has been entered. Upon a determination of liability in respect of a claim of indemnification under this Article X, the indemnifying party shall pay the indemnified party the amount so determined (subject to the limitations hereof) set forth in this Article IX. If any amount owed under this Article IX is not paid within ten 10 days of the Indemnifying Securityholders and the Indemnified Parties agreeing such amount is due or upon a final adjudication determined by a court of competent jurisdiction that such amount is due (10) Business Days after the date of determination (such tenth Business Dayeither, a “Final Determination”), the “Due Date”). Indemnifying Securityholders shall reimburse the Indemnified Parties for any and all costs or expenses of any nature or kind whatsoever (iiincluding reasonable legal fees) Purchaser incurred in seeking to collect such amount under this Article IX, and no limitation in this Article IX shall be entitled apply to receive from any such reimbursement. If any amount owed under this Article IX is not paid within 30 days of a Final Determination, Parent may, in its sole discretion, in addition to all other remedies it may have, recover some or all of such amount by setting off such amount against any amounts then due and payable by Parent or any of its Affiliates to any Indemnifying Securityholder or any of their respective Affiliates under this Agreement or any Ancillary Agreement. In each case, the Indemnity Escrow Amount for its own account (exercise of such right to cancel or that set off shall not constitute a breach of the applicable Purchaser any Indemnified Party) any indemnification payment amount to which it ’s obligations under this Agreement or any other Purchaser Ancillary Agreement, and the exercise or failure to exercise such right to cancel or set off shall not constitute an election of remedies or limit any Indemnified Party in any manner in the enforcement of any other remedies that may be entitled pursuant to this Article X, upon written notice to the Escrow Agent directing the Escrow Agent to immediately release to the indemnified party funds from the Indemnity Escrow Amount equal available to such amount Indemnified Party. Each Shareholder and Optionholder hereby irrevocably constitutes and appoints Parent as their true and lawful attorney-in-fact and agent with full power of substitution to do any and all things and execute any and all documents which may be necessary to effectuate any cancellation of Equity Securities or set off in accordance with the terms of the Escrow Agreement (it being understood that any amounts disputed or deemed disputed by Seller or Purchaser shall not be available for release by the Escrow Agent until the claims in respect thereof are finally determined). If any indemnification payment is to be made to any Purchaser Indemnified Party pursuant to this Article X, all such indemnification payments shall be made (i) first from the then-remaining Indemnity Escrow Amount on deposit with the Escrow Agent and (ii) after the Indemnity Escrow Amount has been reduced by any indemnification payments so that no Indemnity Escrow Amount remains on deposit with the Escrow Agent, out-of-pocket from Seller pursuant to Section 10.8(b)(i). If there should be a dispute as to the amount or manner of determination of any indemnity obligation owed under this Agreement, the indemnifying party shall nevertheless pay when due, or Purchaser may (in accordance with the foregoing) obtain from the Indemnity Escrow Amount, as applicable, such portion, if any, (and only such portion) of the obligation as shall not be subject to dispute9.8. The difference, if any, between the amount foregoing grant of the obligation ultimately determined as properly payable under this Agreement authority is a special power of attorney coupled with an interest and the portion, if any, theretofore paid shall bear interest as provided below in Section 10.8(b)(iii). Upon the payment in full of any claim of indemnification, the indemnifying party or other Person making payment shall be subrogated to the rights of the indemnified party against any Person with respect to the subject matter of such claim for indemnificationis irrevocable. (iii) If all or part of any indemnification obligation under this Agreement is not paid when due, then the indemnifying party shall pay the indemnified party interest on the unpaid amount of the obligation for each calendar day from the Due Date until payment in full at a rate per annum equal to the Applicable Rate on the Due Date.

Satisfaction of Indemnification Claims. (i) Subject to Except as set forth in Section 10.8(b)(ii9.4(b), all the Indemnified Parties shall have the right but not the obligation to seek satisfaction of claims for indemnification from either the Escrow Fund pursuant to the Escrow Agreement or any of the Indemnifying Securityholders. If any amount owed under this Article X shall be IX is not paid by within 30 days of the indemnifying party on demand in immediately available funds in U.S. dollars after Indemnifying Securityholders and the liability for Damages thereunder have been finally determined. The liability for Damages under any Indemnified Parties agreeing such claims for indemnification shall be deemed to be “finally determined” for purposes of this Article X when the parties to an action have so amount is due or upon a final adjudication determined by mutual agreement or, if disputed, when a final non-appealable order of a court having of competent jurisdiction has been entered. Upon that such amount is due (either, a determination “Final Determination”), the Indemnifying Securityholder shall reimburse the Indemnified Party for any and all costs or expenses of liability any nature or kind whatsoever (including reasonable legal fees) incurred in respect of a claim of indemnification seeking to collect such amount under this Article XIX, the indemnifying party shall pay the indemnified party the amount so determined (subject to the limitations hereof) within ten (10) Business Days after the date of determination (such tenth Business Day, the “Due Date”). (ii) Purchaser shall be entitled to receive from the Indemnity Escrow Amount for its own account (or that of the applicable Purchaser Indemnified Party) any indemnification payment amount to which it or any other Purchaser Indemnified Party may be entitled pursuant to and no limitation in this Article X, upon written notice IX shall apply to the Escrow Agent directing the Escrow Agent to immediately release to the indemnified party funds from the Indemnity Escrow Amount equal to any such amount in accordance with the terms of the Escrow Agreement (it being understood that any amounts disputed or deemed disputed by Seller or Purchaser shall not be available for release by the Escrow Agent until the claims in respect thereof are finally determined)reimbursement. If any indemnification payment is to be made to any Purchaser Indemnified Party pursuant to amount owed under this Article XIX is not paid within 30 days of a Final Determination, Parent may, in its sole discretion, in addition to all other remedies it may have, recover some or all of such indemnification payments amount by setting off such amount against any amounts then due and payable by Parent or any of its Affiliates to such Indemnifying Securityholder or any of their respective Affiliates under this Agreement,. In each case, the exercise of such right to cancel or set off shall be made (i) first from the then-remaining Indemnity Escrow Amount on deposit with the Escrow Agent and (ii) after the Indemnity Escrow Amount has been reduced by any indemnification payments so that no Indemnity Escrow Amount remains on deposit with the Escrow Agent, out-of-pocket from Seller pursuant to Section 10.8(b)(i). If there should be not constitute a dispute as to the amount or manner of determination breach of any indemnity obligation owed Indemnified Party’s obligations under this Agreement, and the indemnifying party exercise or failure to exercise such right to cancel or set off shall nevertheless pay when due, not constitute an election of remedies or Purchaser limit any Indemnified Party in any manner in the enforcement of any other remedies that may (be available to such Indemnified Party. Each Stockholder and Optionholder hereby irrevocably constitutes and appoints Parent as their true and lawful attorney-in-fact and agent with full power of substitution to do any and all things and execute any and all documents which may be necessary to effectuate any cancellation of Equity Securities or set off in accordance with the foregoing) obtain from the Indemnity Escrow Amount, as applicable, such portion, if any, (and only such portion) of the obligation as shall not be subject to disputethis Section 9.7. The difference, if any, between the amount foregoing grant of the obligation ultimately determined as properly payable under this Agreement authority is a special power of attorney coupled with an interest and the portion, if any, theretofore paid shall bear interest as provided below in Section 10.8(b)(iii). Upon the payment in full of any claim of indemnification, the indemnifying party or other Person making payment shall be subrogated to the rights of the indemnified party against any Person with respect to the subject matter of such claim for indemnificationis irrevocable. (iii) If all or part of any indemnification obligation under this Agreement is not paid when due, then the indemnifying party shall pay the indemnified party interest on the unpaid amount of the obligation for each calendar day from the Due Date until payment in full at a rate per annum equal to the Applicable Rate on the Due Date.

Satisfaction of Indemnification Claims. (i) Subject to Section 10.8(b)(ii), all claims All Claims for indemnification under this Article X shall be paid by the indemnifying party on demand in immediately available funds in U.S. dollars after the liability for Damages thereunder have been finally determined. (ii) If there should be a dispute as to the amount or manner of determination of any indemnity obligation owed under this Agreement, the indemnifying party shall nevertheless pay when due in an amount that is not subject to dispute. The liability for Damages under any such claims Claims for indemnification shall be deemed to be “finally determined” for purposes of this Article X when the parties to an action have so determined by mutual agreement or, if disputed, when a final non-appealable order of a court having competent jurisdiction has been entered. . (iii) Upon a determination of liability in respect of a claim Claim of indemnification under this Article XArticle, the indemnifying party shall pay the indemnified party the amount so determined (subject to the limitations hereof) within ten (10) Business Days after the date of determination (such tenth Business Day, the “Due Date”). (ii) Purchaser shall be entitled to receive from the Indemnity Escrow Amount for its own account (or that of the applicable Purchaser Indemnified Party) any indemnification payment amount to which it or any other Purchaser Indemnified Party may be entitled pursuant to this Article X, upon written notice to the Escrow Agent directing the Escrow Agent to immediately release to the indemnified party funds from the Indemnity Escrow Amount equal to such amount in accordance with the terms of the Escrow Agreement (it being understood that any amounts disputed or deemed disputed by Seller or Purchaser shall not be available for release by the Escrow Agent until the claims in respect thereof are finally determined). If any indemnification payment is to be made to any Purchaser Indemnified Party pursuant to this Article X, all such indemnification payments shall be made (i) first from the then-remaining Indemnity Escrow Amount on deposit with the Escrow Agent and (ii) after the Indemnity Escrow Amount has been reduced by any indemnification payments so that no Indemnity Escrow Amount remains on deposit with the Escrow Agent, out-of-pocket from Seller pursuant to Section 10.8(b)(i). If there should be a dispute as to the amount or manner of determination of any indemnity obligation owed under this Agreement, the indemnifying party shall nevertheless pay when due, or Purchaser may (in accordance with the foregoing) obtain from the Indemnity Escrow Amount, as applicable, such portion, if any, (and only such portion) of the obligation as shall not be subject to dispute. The difference, if any, between the amount of the obligation ultimately determined as properly payable under this Agreement and the portion, if any, theretofore paid shall bear interest as provided below for each calendar day from the Due Date until payment in Section 10.8(b)(iii)full at a rate per annum equal to the Applicable Rate on the Due Date. Upon the payment in full of any claim Claim of indemnification, the indemnifying party or other Person making payment shall be subrogated to the rights of the indemnified party against any Person with respect to the subject matter of such claim Claim for indemnification. (iii) If all or part of any indemnification obligation under this Agreement is not paid when due, then the indemnifying party shall pay the indemnified party interest on the unpaid amount of the obligation for each calendar day from the Due Date until payment in full at a rate per annum equal to the Applicable Rate on the Due Date.

Satisfaction of Indemnification Claims. (i) Subject to Section 10.8(b)(ii), all claims for indemnification under this Article X shall be paid by the indemnifying party on demand in immediately available funds in U.S. dollars after the liability for Damages thereunder have been finally determined. The liability for Damages under any such claims for indemnification shall be deemed to be “finally determined” for purposes of this Article X when the parties to an action have so determined by mutual agreement or, if disputed, when a final non-appealable order of a court having competent jurisdiction has been entered. Upon a determination of liability in respect of a claim of indemnification under this Article X, the indemnifying party shall pay the indemnified party the amount so determined (subject to the limitations hereof) within ten (10) Business Days after the date of determination (such tenth Business Day, the “Due Date”). (ii) Purchaser Indemnified Parties shall be entitled to receive seek recovery for satisfaction of claims for indemnification (including claims in respect of Fundamental Representations) directly from Seller or any Key Owner; provided, however, that to the Indemnity Escrow Amount extent applicable to the particular claim for its own account indemnification under Section 7.2(a), the Purchaser Indemnified Parties shall first seek recovery under the R&W Insurance Policy. If any amount owed by Seller or any Key Owner under this Article VII is not paid within 10 days of Seller and the Purchaser Indemnified Parties agreeing such amount is due or upon a final adjudication determined by a court of competent jurisdiction that such amount is due (either, a “Final Determination”), Seller or that of the applicable Key Owner(s) shall reimburse the Purchaser Indemnified Party for any and all reasonable costs or expenses of any nature or kind whatsoever (including reasonable legal fees) incurred in seeking to collect such amount under this Article VII, and no limitation in this Article VII shall apply to any such interest or reimbursement. If any amount owed under this Article VII is not paid within 30 days of a Final Determination, Purchaser may, in its sole discretion, in addition to all other remedies it may have, recover some or all of such amount by setting off such amount against any amounts then due and payable by Purchaser or any of its Affiliates to Seller or any Key Owner or any their Affiliates under the Transaction Documents or any other agreement with Seller or any Key Owner. In each case, the exercise of such right to set off shall not constitute a breach of any Purchaser Indemnified Party) any indemnification payment amount to which it ’s obligations under the Transaction Documents or any other Purchaser Indemnified Party may be entitled pursuant to this Article X, upon written notice to the Escrow Agent directing the Escrow Agent to immediately release to the indemnified party funds from the Indemnity Escrow Amount equal to such amount in accordance agreement with the terms of the Escrow Agreement (it being understood that any amounts disputed or deemed disputed by Seller or Purchaser any Key Owner, and the exercise or failure to exercise such right to set off shall not be available for release by the Escrow Agent until the claims in respect thereof are finally determined). If any indemnification payment is to be made to constitute an election of remedies or limit any Purchaser Indemnified Party pursuant to this Article X, all such indemnification payments shall be made (i) first from in any manner in the then-remaining Indemnity Escrow Amount on deposit with the Escrow Agent and (ii) after the Indemnity Escrow Amount has been reduced by any indemnification payments so that no Indemnity Escrow Amount remains on deposit with the Escrow Agent, out-of-pocket from Seller pursuant to Section 10.8(b)(i). If there should be a dispute as to the amount or manner of determination enforcement of any indemnity obligation owed under this Agreement, the indemnifying party shall nevertheless pay when due, or other remedies that may be available to such Purchaser Indemnified Party. Seller and each Key Owner hereby irrevocably constitutes and appoints Purchaser as its true and lawful attorney-in-fact and agent with full power of substitution to do any and all things and execute any and all documents which may (be necessary to effectuate any set off in accordance with the foregoing) obtain from the Indemnity Escrow Amount, as applicable, such portion, if any, (and only such portion) of the obligation as shall not be subject to disputethis Section 7.8. The difference, if any, between the amount foregoing grant of the obligation ultimately determined as properly payable under this Agreement authority is a special power of attorney coupled with an interest and the portion, if any, theretofore paid shall bear interest as provided below in Section 10.8(b)(iii). Upon the payment in full of any claim of indemnification, the indemnifying party or other Person making payment shall be subrogated to the rights of the indemnified party against any Person with respect to the subject matter of such claim for indemnificationis irrevocable. (iii) If all or part of any indemnification obligation under this Agreement is not paid when due, then the indemnifying party shall pay the indemnified party interest on the unpaid amount of the obligation for each calendar day from the Due Date until payment in full at a rate per annum equal to the Applicable Rate on the Due Date.

Satisfaction of Indemnification Claims. (i) Subject to Section 10.8(b)(ii), all claims for indemnification under this Article X shall be paid Any amounts owed by the indemnifying party on demand in immediately available funds in U.S. dollars after the liability for Damages thereunder have been finally determined. The liability for Damages under any such claims for indemnification shall be deemed to be “finally determined” for purposes of this Article X when the parties Stockholders to an action have so determined by mutual agreement or, if disputed, when a final non-appealable order of a court having competent jurisdiction has been entered. Upon a determination of liability in respect of a claim of indemnification under this Article X, the indemnifying party shall pay the indemnified party the amount so determined (subject to the limitations hereof) within ten (10) Business Days after the date of determination (such tenth Business Day, the “Due Date”). (ii) Purchaser shall be entitled to receive from the Indemnity Escrow Amount for its own account (or that of the applicable Purchaser Indemnified Party) any indemnification payment amount to which it or any other Purchaser Indemnified Party may be entitled pursuant to this Article X, upon written notice to the Escrow Agent directing the Escrow Agent to immediately release to the indemnified party funds from the Indemnity Escrow Amount equal to such amount in accordance with the terms of the Escrow Agreement (it being understood that any amounts disputed or deemed disputed by Seller or Purchaser shall not be available for release by the Escrow Agent until the claims in respect thereof are finally determined). If any indemnification payment is to be made to any Purchaser Indemnified Party pursuant to this Article XVIII will be paid by the Stockholders, all on a joint and several basis (except for liabilities arising from a violation of the representations contained in Section 3.03 or the covenants contained in Section 5.11, which such indemnification payments liabilities shall be made borne by each Stockholder individually), from the following assets in the following order: (i) first from by reducing the then-remaining Indemnity Escrow Amount on deposit with Contingent Payments (if any) payable to the Escrow Agent and Stockholders under the terms of this Agreement, (ii) after by payments made by the Indemnity Retained Entities to NSAP and (iii) by the Stockholders' remittance to NSAP of NSAP Common Stock or the Series A Preferred Shares (valued at a price per share equal to the average of the Closing price per share of NSAP Common Stock on the New York Stock Exchange for the 20 consecutive trading days ending 5 days prior to the date of such remittance) previously issued to them under this Agreement or acquired otherwise and held pursuant to the Stockholders' Escrow Amount has been reduced by any indemnification payments so Agreement (as defined); provided, however, that all claims shall be satisfied against these assets in the order in which they are enumerated above in that no Indemnity Escrow Amount remains on deposit with Indemnified Party may make a claim against any of the Escrow Agent, out-of-pocket from Seller pursuant to Section 10.8(b)(i). If there should be a dispute as to assets enumerated in clause (ii) or (iii) until the amount assets enumerated in the preceding clause or manner of determination of any indemnity obligation owed under this Agreement, the indemnifying party shall nevertheless pay when due, or Purchaser may (in accordance with the foregoing) obtain from the Indemnity Escrow Amountclauses, as applicablethe case may be, such portion, if any, shall have been exhausted. To satisfy any amounts due under subsection (and only such portioniii) of the obligation as shall immediately preceding sentence, the Stockholders hereby agree to enter into an escrow agreement (the "Stockholders' Escrow Agreement") with NSAP pursuant to which the Stockholders will collectively, according to their percentage ownership interest in the NSI Shares, place an aggregate amount of NSAP Common Stock equal to U.S. $70,000,000 (to be calculated according the Average NSAP Common Stock Price at Closing) into an escrow account and that such NSAP Common Stock may not be subject sold or otherwise transferred by the Stockholders prior to dispute. The difference, if any, between the amount expiration of the obligation ultimately determined as properly payable indemnification provisions under Article VIII of this Agreement and the portion, if any, theretofore paid shall bear interest as provided below in Section 10.8(b)(iii). Upon the payment in full of any claim of indemnification, the indemnifying party or other Person making payment shall be subrogated to the rights of the indemnified party against any Person with respect to the subject matter of such claim for indemnificationAgreement. (iii) If all or part of any indemnification obligation under this Agreement is not paid when due, then the indemnifying party shall pay the indemnified party interest on the unpaid amount of the obligation for each calendar day from the Due Date until payment in full at a rate per annum equal to the Applicable Rate on the Due Date.