Common use of Escrowed Amount Clause in Contracts

Escrowed Amount. In addition to the other limitations on indemnification set forth herein, the Buyer shall first seek a remedy from the Escrowed Amount pursuant to the Escrow Agreement with respect to any indemnification claim asserted hereunder before seeking to recover any Losses directly from any Sellers. On August 31, 2012 (the “Release Date”), as provided in the Escrow Agreement certain amounts held in escrow will be released to the Sellers and Phantom Plan Participants, and thereafter any remaining amounts will be distributed to Buyer Indemnified Persons, the Sellers or Phantom Plan Participants as provided in the Escrow Agreement. As set forth in more detail in the Escrow Agreement, the Escrow Agent shall distribute to each Seller its Combined Percentage thereof, in each case less any amount that has previously been paid to the Buyer from the Escrow Amount on account of indemnity claims against such Seller pursuant to Section 9.1(a)(iii) or (iv), and as provided in the Phantom Plan Payment Agreement will remit to each Phantom Plan Participant its Combined Percentage thereof. As set forth in more detail in the Escrow Agreement, promptly as practicable following the resolution of each pending indemnification claim which was outstanding as of the Release Date (other than claims solely against one Seller arising under Section 9.1(a)(iii) or (iv), in which case after the resolution of the pending indemnification claim any related portion of the Escrowed Amount that is not released to the Buyer will be released solely to the applicable Seller), the Escrow Agent shall distribute to each Seller and each Phantom Plan Participant its Combined Percentage of the excess, if any, of (a) the amount so withheld with respect to such pending indemnification claim as of the Release Date, over (b) the amount used to satisfy the indemnification obligation of the Sellers pursuant to this Article IX and Phantom Plan Participant pursuant to the Phantom Plan Payment Agreement with respect to such pending indemnification claim.

Escrowed Amount. In addition to the other limitations on indemnification set forth herein, the Buyer (a) Cimmarron shall first seek a remedy from cause the Escrowed Amount to be deposited on the Closing Date with the Escrow Agent to be held in trust pursuant to the Escrow Agreement with respect to any indemnification claim asserted hereunder before seeking to recover any Losses directly from any Sellers. On August 31, 2012 (terms hereof and the “Release Date”), as provided in the Escrow Agreement certain amounts held in escrow will be released to the Sellers and Phantom Plan Participants, and thereafter any remaining amounts will be distributed to Buyer Indemnified Persons, the Sellers or Phantom Plan Participants as provided in terms of the Escrow Agreement. As set forth in more detail between ReoStar and Cimmarron, in the event of a conflict between the terms and conditions of the Escrow Agreement and the terms and conditions of this Agreement, the Escrow Agent terms and conditions of this Agreement shall distribute control. The Escrowed Amount will be used to each Seller its Combined Percentage thereofsatisfy any indemnification obligations of ReoStar pursuant to this Agreement; provided, however, that nothing in each case less any amount that has previously been paid this Section 15 shall limit the rights of the Cimmarron Group to seek indemnity from ReoStar pursuant to this Agreement or otherwise. (b) If Cimmarron asserts an indemnity claim under this Agreement, and the Buyer Indemnifying Party does not dispute such claim, Cimmarron shall be entitled to indemnification by the Indemnifying Party in accordance with this Section 15 by receiving from the Escrow Amount on account of indemnity claims against such Seller pursuant to Section 9.1(a)(iii) or (iv), and as provided in the Phantom Plan Payment Agreement will remit to each Phantom Plan Participant its Combined Percentage thereof. As set forth in more detail in the Escrow Agreement, promptly as practicable following the resolution of each pending indemnification claim which was outstanding as of the Release Date (other than claims solely against one Seller arising under Section 9.1(a)(iii) or (iv), in which case after the resolution of the pending indemnification claim any related portion Agent an amount of the Escrowed Amount in cash equal to the amount of such undisputed claim, and the Parties shall promptly jointly execute and deliver to the Escrow Agent written instructions instructing the Escrow Agent to release and deliver to Cimmarron such amount in accordance with the terms of and in the manner set forth in such instructions. If, however, ReoStar disputes such claim, Cimmarron shall not be entitled to receive any amount of the Escrowed Amount in cash with respect to such claim prior to resolution of such dispute in accordance with this Agreement, other than any amount that is not released in dispute with respect to the Buyer will be released solely such claim. (c) Provided all indemnification obligations of ReoStar to the applicable SellerCimmarron under this Agreement relating to a breach of a representation or warranty of ReoStar set forth in Section 3.1, Section 3.2(i), Section 3.2(iii), Section 3.2(iv) or Section 3.2(v) (collectively, the Escrow Agent shall distribute to each Seller and each Phantom Plan Participant its Combined Percentage of the excess"Fundamental Representations") for which Cimmarron has asserted an indemnity claim, if any, of have been satisfied (aincluding the obligation to pay any claim relating thereto) prior to the amount so withheld with respect to such pending indemnification claim as expiration of the Release 90th day after the Closing Date, over (b) and no dispute then exists as to any indemnity claim notified by Cimmarron to ReoStar hereunder prior to the amount used 90th day after the Closing Date relating to satisfy a breach of a Fundamental Representation, the indemnification obligation Parties shall, on the first Business Day immediately following the 90th day after the Closing Date, jointly execute and deliver to the Escrow Agent written instructions instructing the Escrow Agent to release and deliver to ReoStar the Early Release Escrowed Amount in accordance with the terms of and in the Sellers manner set forth in such instructions. To the extent there exists an indemnity claim pursuant to this Article IX Agreement relating to a breach of a Fundamental Representation that has been notified by Cimmarron to ReoStar hereunder, but not satisfied in full by ReoStar prior to the expiration of the 90th day after the Closing Date, the Parties shall, on the first Business Day immediately following the 90th day after the Closing Date, jointly execute and Phantom Plan Participant deliver to the Escrow Agent written instructions instructing the Escrow Agent to release and deliver to ReoStar the Early Release Escrowed Amount in accordance with the terms of and in the manner set forth in such instructions; provided, however, that an amount of the Escrowed Amount equal to the maximum possible amount of such claim or claims reasonably believed by the Parties hereto to be due or likely to be due hereunder (or, in the event of a dispute between the Parties with respect thereto, the higher of the two estimates) will be withheld from the Early Release Escrowed Amount and will continue to be held by the Escrow Agent pursuant to the Phantom Plan Payment terms of hereof and the terms of the Escrow Agreement with respect until such claim or claims have been fully resolved and the Escrow Agreement shall be deemed to such pending indemnification claimbe extended accordingly.