Common use of Holdback Amount Clause in Contracts

Holdback Amount. For any Loss for which the Sellers are obligated to indemnify the Buyer Indemnitees, the Buyer Indemnitees shall seek reimbursement for such Loss from the Holdback Amount first, and once the Holdback Amount is exhausted, then the Buyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount more than twelve (12) months after the Closing Date, unless mutually agreed upon by the parties, and on the first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims to the Sellers. Once any pending claims are resolved in accordance with this Agreement, the then remaining Holdback Amount shall be paid to Sellers.

Holdback Amount. For any Loss for which No later than the Sellers are obligated to indemnify third Business Day after the Buyer Indemnitees, the Buyer Indemnitees shall seek reimbursement for such Loss from the Holdback Amount first, and once the Holdback Amount date that is exhausted, then the Buyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount more than twelve (12) six months after the Closing Date, unless mutually agreed upon the Purchaser shall pay to the Seller by bank or wire transfer of immediately available funds to the account designated in writing by the partiesSeller at least one Business Day prior to such date, and on the first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims an amount in cash equal to the Sellers. Once any pending claims are resolved in accordance with this Agreement, the then remaining Holdback Amount less $1,000,000 less the aggregate amount of all unresolved claims for indemnification brought by the Purchaser Indemnified Parties in accordance with this ARTICLE IX, (b) 12 months after the Closing Date, the Purchaser shall pay to the Seller by bank or wire transfer of immediately available funds to the account designated in writing by the Seller at least one Business Day prior to such date, an amount in cash equal to the then remaining Holdback Amount less $500,000 less the aggregate amount of all unresolved claims for indemnification brought by the Purchaser Indemnified Parties in accordance with this ARTICLE IX, and (c) 18 months after the Closing Date, the Purchaser shall pay to the Seller by bank or wire transfer of immediately available funds to the account designated in writing by the Seller at least one Business Day prior to such date, an amount in cash equal to the then remaining Holdback Amount less the aggregate amount of all unresolved claims for indemnification brought by the Purchaser Indemnified Parties in accordance with this ARTICLE IX. No later than the third Business Day following the final resolution of any unresolved claim for which funds were so withheld by the Purchaser, any such funds not paid to Purchaser as a result of the resolution of such claims shall be paid by the Purchaser to Sellersthe Seller by bank or wire transfer of immediately available funds to the account designated in writing by the Seller at least one Business Day prior to such date.

Holdback Amount. For any Loss for which the (a) The Sellers are obligated to indemnify hereby authorize and instruct the Buyer Indemniteesto deduct from the Estimated Closing Payment otherwise payable to the Equityholders at the Closing an aggregate amount of $750,000 (the “Holdback Amount”) in order to support the Sellers’ indemnification obligations under Article VI and the Equityholders’ payment obligations under Section 1.5, if any. (b) Following the date that is 15 months after the Closing Date (the “Holdback Expiration Date”), the Seller Representative shall deliver to the Buyer Indemnitees shall seek reimbursement for such Loss an updated Payment Spreadsheet including each Equityholder’s Pro Rata Portion of the Holdback Amount, less the Adjustment Amount as paid or reduced from the Holdback Amount firstin accordance with Section 1.5, less the sum of the aggregate amount of all claims for indemnification asserted in writing by the Buyer prior to the Holdback Expiration Date pursuant to and once in accordance with Article VI, less any Company Transaction Expenses arising in connection with the release of the Holdback Amount is exhausted(such amount, then the “Holdback Release Amount”). Within five (5) Business Days of receiving such updated Payment Spreadsheet, the Buyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: shall (ai) in the case of any indemnification claim pursuant to Section 10.1(a) pay or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject deliver to the limitations set forth in this Agreement, which may be satisfied by Company for payment of (to be made within fifteen (15as applicable) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount more than twelve Release Amount, if any, designated for the holders of Cancelled Options to such holders through payroll as soon as reasonably practical and (12ii) months after the Closing Date, unless mutually agreed upon by the parties, and on the first annual anniversary of this Agreement Buyer shall pay deliver the remaining Holdback Release Amount, less any pending claims if any, to the Sellers. Once any pending claims are resolved Paying Agent for payment to the remaining Equityholders, in each case, in accordance with this Agreement, the then remaining updated Payment Spreadsheet and each of their respective Pro Rata Portions. Any Company Transaction Expenses arising in connection with the payment of the Holdback Release Amount shall be paid to Sellersretained by the Buyer.

Holdback Amount. For any Loss for which (a) The Closing Purchase Price paid at Closing will reflect a deduction equal to the Sellers are obligated Holdback Amount as may be increased pursuant to indemnify Schedule 1.6. Within 90 days following the Buyer Indemniteesfirst anniversary of the Closing Date, the Buyer Indemnitees shall seek reimbursement will determine the aggregate amounts related to, incurred or paid in connection with or resulting from returns of, and credits related to, Roccat products or merchandise that were sold prior to the Closing (the “Return Expense”) and will provide the Sellers Representative with a written statement setting forth its calculation of the Return Expense (the “Returns Statement”). (b) If the Sellers disagrees with any part of the Buyer’s calculation of the Return Expense as set forth in the Returns Statement, Roccat will, within thirty (30) days after the receipt of the Returns Statement with the Sellers Representative, notify the Buyer in writing of such disagreement by setting forth the Sellers’s calculation of the Return Expense, including each of the components thereof, and describing in reasonable detail the basis for such Loss from disagreement. In the event that the Buyer and Roccat are unable to resolve all such disagreements within thirty (30) days after the Sellers Representative’s receipt of the Returns Statement, the Buyer and Roccat will submit such remaining disagreements to the Valuation Firm. The Valuation Firm will make a final and binding determination with respect to the computation of the Return Expense, to the extent such amounts are in dispute. The Valuation Firm will consider only those items and amounts in the respective calculations of the Return Expense of the Buyer and Roccat, including each of the components thereof, that are identified as being items and amounts to which the Buyer and Roccat have been unable to agree. In resolving any disputed item, the Valuation Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Valuation Firm’s determination of the Return Expense, including each of the components thereof, will be based solely on written materials submitted by the Buyer and Roccat (i.e., not on independent review) and on the definitions included herein. The determination of the Valuation Firm will be conclusive and binding upon the parties hereto and will not be subject to appeal or further review. The costs and expenses of the Valuation Firm in determining the Return Expense will be borne by the Buyer and the Sellers consistent with the methodology set forth in Section 1.5(f). (c) If the final determination of the Return Expense is less than the Holdback Amount firstAmount, then the Buyer will (i) retain an amount equal to the Return Expense, and once (ii) pay to the Sellers the amount (if any) by which the amount of the Holdback Amount is exhaustedgreater than the Return Expense. If the final determination of the Return Expense is greater than the Holdback Amount, then the Buyer Indemnitees may proceed to collect will (i) retain the unreimbursed amount of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount more than twelve (12) months after the Closing Date, unless mutually agreed upon by the parties, and on the first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount, less and (ii) be entitled to recover any pending claims to excess from the Sellers. Once Indemnification Escrow Amount or by setting off against any pending claims are resolved in accordance with this Agreement, the then remaining Holdback Amount shall be paid to SellersContingent Payments.

Holdback Amount. For any Loss for which Any payment that the Sellers Shareholders are obligated to indemnify the Buyer Indemnitees, the make to any Buyer Indemnitees shall seek reimbursement for such Loss from the Holdback Amount pursuant to this Article IX shall, first, and once to the extent that the Holdback Amount is exhaustedgreater than the indemnity payment, then 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 additional sums are due after the offset against the Holdback Amount, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees may proceed to collect the unreimbursed amount by wire transfer of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing within five (5) business days after demand by the Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of On the Holdback Amount more than twelve (12) months after the Closing Release Date, unless mutually agreed upon by the parties, and on the first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims Amount (to the Sellersextent not offset for indemnity payments due from any of the Shareholders) to the Shareholders by wire transfer of immediately available funds; provided, however, Buyer shall retain an amount equal to the amount of claims for indemnification under this Article IX asserted prior to the Release Date but not yet resolved (“Unresolved Claims”). Once Buyer will pay the portion of the Holdback Amount retained for Unresolved Claims to the Shareholders, to the extent the portion of the Holdback Amount is not utilized as payment for such claims resolved in favor of any pending claims are resolved Buyer Indemnitee, upon their resolution in accordance with this Agreement, the then remaining Holdback Amount shall be paid to SellersArticle IX.

Holdback Amount. For any Loss for which the Sellers are obligated to indemnify the Buyer Indemnitees(1) At Closing, the Deposit shall be retained in the Escrow Account (such amount as of the Closing is the “Holdback Amount”) until December 2, 2021, and so long thereafter as may be required to resolve any claims asserted by Buyer Indemnitees hereunder. (2) To the extent that it is finally determined under the terms of this Agreement that Buyer is entitled to any claim for indemnification under Section 14.3(b), the Parties shall seek reimbursement for cause the Escrow Agent to distribute, without offset or counterclaim, such Loss amount to Buyer from the Holdback Amount firstAmount, which distribution shall satisfy such claim only up to the amount so distributed to Buyer. (3) On December 2, 2021, Buyer and once Seller shall jointly instruct the Escrow Agent to release the then-current balance of the Holdback Amount is exhaustedAmount, then if any, to Seller in accordance with the Escrow Agreement; provided, however, that Buyer and Seller shall jointly instruct the Escrow Agent to retain an amount (up to the then-current balance of the Holdback Amount) equal to the amount of indemnity claims under Section 14.3(b) asserted by Buyer or Earthstone on behalf of itself or any member of the Buyer Indemnitees may proceed Group on or prior to collect the unreimbursed amount end of the General Survival Period, of such Loss: claim that remains unresolved (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise“Unresolved Claim”). Buyer may not hold any That portion of the Holdback Amount more than twelve (12) months after the Closing Date, unless mutually agreed upon retained for each Unresolved Claim shall be released by the parties, and on Escrow Agent upon the first annual anniversary final resolution of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims to the Sellers. Once any pending claims are resolved such Unresolved Claim in accordance with this Article XIV and paid to (or the applicable portion thereof) (i) the applicable member of the Buyer Group, if applicable, and (ii) Seller with joint escrow instructions pursuant to the Escrow Agreement. (4) Notwithstanding anything to the contrary in this Agreement, (i) Buyer’s sole and exclusive remedy for any Losses (except with respect to the then remaining Specified Exceptions and as set forth in the agreements substantially in the form of Exhibit G (Form of Registration Rights Agreement) and Exhibit I (Form of Side Letter)) for which any member of the Buyer Group it is entitled to recovery under this Agreement or in any Transaction Document and as set forth in the agreements substantially in the form of Exhibit G (Form of Registration Rights Agreement) and Exhibit I (Form of Side Letter) is to seek recovery of such Losses from the Holdback Amount and not from Seller, its Affiliates, any of its Representatives, or any other member of the Seller Group, and (ii) except with respect to the Specified Exceptions, the Buyer Group shall have no right to indemnification under Section 14.3(b) for aggregate Losses in excess of the Holdback Amount. (5) The Parties shall issue such joint written notices, and otherwise take such actions, as may be paid reasonably necessary from time to Sellerstime to cause the Escrow Agent to distribute amounts in the Escrow Account in accordance with this Section 14.5(e). (6) Buyer and Seller shall each bear 50% of all fees and costs charged by the Escrow Agent associated with the Holdback Amount.

Holdback Amount. For (1) At Closing, Two Million Six Hundred Thousand Dollars ($2,600,000.00) of the Deposit shall be retained in the Escrow Account (such amount as of the Closing is the “Holdback Amount”) until December 2, 2021, and so long thereafter as may be required to resolve any Loss claims asserted by Buyer prior to such date as provided hereunder. (2) To the extent that it is finally determined under the terms of this Agreement that Buyer is entitled to any claim for which the Sellers are obligated to indemnify the Buyer Indemniteesindemnification under Section 14.3(b), the Parties shall cause the Escrow Agent to distribute, without offset or counterclaim, such amount to Buyer Indemnitees shall seek reimbursement for such Loss from the Holdback Amount firstAmount, which distribution shall satisfy such claim only up to the amount so distributed to Buyer. (3) On December 2, 2021, Buyer and once Seller shall jointly instruct the Escrow Agent to release the then-current balance of the Holdback Amount is exhaustedAmount, then if any, to Seller in accordance with the Escrow Agreement; provided, however, that Buyer and Seller shall jointly instruct the Escrow Agent to retain an amount (up to the then-current balance of the Holdback Amount) equal to the amount of indemnity claims under Section 14.3(b) asserted by Buyer or Earthstone on behalf of itself or any member of the Buyer Indemnitees may proceed Group on or prior to collect the unreimbursed amount end of the General Survival Period, of such Loss: claim that remains unresolved (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise“Unresolved Claim”). Buyer may not hold any That portion of the Holdback Amount more than twelve (12) months after the Closing Date, unless mutually agreed upon retained for each Unresolved Claim shall be released by the parties, and on Escrow Agent upon the first annual anniversary final resolution of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims to the Sellers. Once any pending claims are resolved such Unresolved Claim in accordance with this Article XIV and paid to (or the applicable portion thereof) (i) the applicable member of the Buyer Group, if applicable, and (ii) Seller with joint escrow instructions pursuant to the Escrow Agreement. (4) Notwithstanding anything to the contrary in this Agreement, (i) Buyer’s sole and exclusive remedy for any Losses (except with respect to the then remaining Specified Exceptions and as set forth in the agreement substantially in the form of Exhibit G (Form of Registration Rights Agreement)) for which any member of the Buyer Group it is entitled to recovery under this Agreement or in any Transaction Document and as set forth in the agreement substantially in the form of Exhibit G (Form of Registration Rights Agreement) is to first seek recovery of such Losses from the Holdback Amount and then from Seller or its Affiliates or Representatives up to an additional amount of Two Million Six Hundred Thousand Dollars ($2,600,000.00) for an aggregate amount of Five Million Two Hundred Thousand Dollars ($5,200,000.00), and (ii) except with respect to the Specified Exceptions, the Buyer Group shall have no right to indemnification under Section 14.3(b) for aggregate Losses in excess of such amounts in clause (i) above. (5) The Parties shall issue such joint written notices, and otherwise take such actions, as may be paid reasonably necessary from time to Sellerstime to cause the Escrow Agent to distribute amounts in the Escrow Account in accordance with this Section 14.5(e). (6) Buyer and Seller shall each bear 50% of all fees and costs charged by the Escrow Agent associated with the Holdback Amount.

Holdback Amount. For any Loss for which Buyer shall withhold $460,000.00 (the Sellers are obligated to indemnify the Buyer Indemnitees, the Buyer Indemnitees shall seek reimbursement for such Loss “Holdback Amount”) from the Holdback Amount first, and once Purchase Price. Buyer shall pay the Holdback Amount, minus the Economic Adjustment Amount (if the Economic Adjustment Amount is exhausted, then the Buyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: (a) calculated in the case of any indemnification claim pursuant to accordance with Section 10.1(a) or (b2.6(c)(i)), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or plus the Economic Adjustment Amount (bif the Economic Adjustment Amount is calculated in accordance with Section 2.6(c)(ii)) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers wire transfer in immediately available funds to an the account designated specified by Seller upon the earlier of the following to occur: (a) Seller obtains and delivers to Buyer the consent of PG&E to the assignment of all Seller customers within its pool to UET as well as a pro rata share of firm pipeline capacity contracted for and held by PG&E for its Core Customers on the Foothills Pipelines, NOVA Gas Transmission, Gas Transmission Northwest, Ruby Pipeline, El Paso Natural Gas, Transwestern Pipeline, Kern River Gas Transmission, and PG&E’s Redwood and Baja Backbone Transmission paths made three times each calendar year as specified in writing Schedule G-CT and specified in Attachment C (Core Gas Aggregation Service Agreement) and the core firm storage capacity to be utilized and paid for by the CTA pursuant to rate Schedules G-CT and G-CFS per Attachment D (Core Firm Storage Requirement (the “Required Consent”); or (b) Buyer Indemniteeswaives, in writing, Seller’s obligation to provide the Required Consent. The foregoing restrictions Should neither of the conditions specified in Section 2.5(a) or Section 2.5(b) have occurred within one hundred and twenty (120) days following Closing (the “Holdback Period”), then Buyer shall no longer be obligated to pay the Holdback Amount and the Purchase Price shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether forever reduced by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion the amount of the Holdback Amount more than twelve (12) months after the Closing Date, unless mutually agreed upon by the parties, and on the first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims to the Sellers. Once any pending claims are resolved in accordance with this Agreement, the then remaining Holdback Amount shall be paid to Sellers.