Common use of Subsequent Determination Clause in Contracts

Subsequent Determination. If the Buyer shall have submitted a Notice of Claim specifying a Contingent Claim Amount prior to the Escrow Release Date, the Buyer shall promptly determine the actual amount of the indemnification payment to which it claims to be entitled in respect of such claim (the "Deferred Claim Amount") and deliver to the Escrow Agent and the Seller a notice setting forth the Deferred Claim Amount, including a detailed description of the method of calculating such Deferred Claim Amount (the "Determination Notice"). Unless, within 15 days after the receipt of such Determination Notice (the expiration of such 15 day period being herein referred to as the "Deferred Return Date"), the Seller shall have delivered to the Escrow Agent and the Buyer a Notice of Objection contesting the merits or amount of such Determination Notice, the Escrow Agent shall, within 10 days after the Deferred Return Date, deliver to the Buyer from the Escrow Deposit the lesser of the Escrow Deposit and the Deferred Claim Amount. If the Buyer shall not deliver a Determination Notice with respect to any Contingent Claim Amount by the later of the Escrow Release Date and 180 days after the date Buyer delivers a Payment Notice with respect to such Contingent Claim Amount, the Buyer and the Seller shall promptly thereafter refer such matter to the AAA pursuant to Section 2.5 for a determination of, and the Seller and the Buyer shall expressly instruct the arbitrator or arbitrators to determine, the appropriate portion of the Escrow Deposit to be retained in escrow, including, where applicable, on and after the Escrow Release Date, with respect to such Contingent Claim Amount (the "Estimate", it being understood that the determination of such Estimate shall be without prejudice to the Buyer's right to assert a claim under the Asset Purchase Agreement or the Guaranty for the actual amount of the Seller's liability under the Indemnification Provisions in respect of such Contingent Claim Amount in excess of such Estimate, or to the Seller's right to the distribution in accordance herewith of the amount by which such Estimate exceeds the actual amount of the Seller's liability under the Indemnification Provisions in respect of such Contingent Claim Amount, and that in making such determination, the arbitrator or arbitrators shall not be bound or limited by, or precluded from applying, the "more likely than not" standard set forth in Section 2.2 hereof, but shall instead apply whatever standard such arbitrator or arbitrators deem appropriate in determining the appropriate portion of the Escrow Deposit to be retained).

Subsequent Determination. If the Buyer shall have submitted a Insofar as any Notice of Claim specifying a Contingent Claim Amount prior arises out of, is based upon or relates to a claim by any third party that the Buyer is liable for any Excluded Liability as successor to the Escrow Release DateSeller, such retention of the Contingent Claim Amount pursuant to Section 2.3 hereof shall, without limitation on the provisions of the Asset Purchase Agreement, be subject to the Buyer taking such action as the Seller may reasonably request in response to such claim, at the Seller's sole expense, including filing and diligently pursuing a motion to dismiss such claim. The Buyer shall promptly determine the actual amount of the indemnification payment to which it claims to be entitled in respect of such claim any Notice of Claim specifying a Contingent Claim Amount (the "Deferred Claim Amount") and deliver to the Escrow Agent and the Seller a notice setting forth the Deferred Claim Amount, including a detailed description of the method of calculating such Deferred Claim Amount (the "Determination Notice"). Unless, within 15 days after the receipt of such Determination Notice (the expiration of such 15 day period being herein referred to as the "Deferred Return Date"), the Seller shall have delivered to the Escrow Agent and the Buyer a Notice of Objection contesting the merits or amount of such Determination Notice, the Escrow Agent shall, within 10 days after the Deferred Return Date, deliver to the Buyer from the Escrow Deposit the lesser of the Escrow Deposit and the Deferred Claim Amount. If the Buyer shall not deliver a Determination Notice with respect to any Contingent Claim Amount by the later of the Escrow Release Date and 180 days after the date the Buyer delivers a Payment Notice with respect to such Contingent Claim Amount, the Buyer and the Seller parties shall promptly thereafter refer such matter to the AAA arbitration pursuant to Section 2.5 for a determination of, and the Seller and the Buyer shall expressly instruct the arbitrator or arbitrators as to determine, the appropriate portion of the Escrow Deposit to be retained in escrow, including, where applicable, on and after the Escrow Release Date, with respect to such Contingent Claim Amount (the "Estimate", it being understood that the determination of such Estimate shall be without prejudice to the Buyer's right to assert a claim under the Asset Purchase Agreement or the Guaranty for the actual amount of the Seller's liability under the Indemnification Provisions in respect of such Contingent Claim Amount in excess of such Estimate, Estimate or to the Seller's right to the distribution in accordance herewith of the amount by which such Estimate exceeds the actual amount of the Seller's liability under the Indemnification Provisions in respect of such Contingent Claim Amount, and that in making such determination, the arbitrator or arbitrators shall not be bound or limited by, or precluded from applying, the "more likely than not" standard set forth in Section 2.2 hereof, but shall instead apply whatever standard such arbitrator or arbitrators deem is appropriate in determining the appropriate portion of the Escrow Deposit to be retained).