Common use of Assertion of Indemnification Claim Clause in Contracts

Assertion of Indemnification Claim. Any of the Seller Indemnitees or any of the Purchaser Indemnitees under Section 5.2 and 5.3, as the case may be (an “Indemnified Party”), shall give timely notice (a “Claim Notice”) to the Party from whom such indemnification is sought (each, an “Indemnifying Party”) after the Indemnified Party has actual knowledge of any claim as to which indemnification may be sought (a “Claim”) and the amount thereof, if known, and supply any other information in the possession of the Indemnified Party regarding such Claim, and will permit the Indemnifying Party (at its expense) to assume the defense of any third party Claim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure by the Indemnified Party to give notice as provided herein will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the Indemnifying Party is materially damaged as a result of the failure to give notice. The Indemnifying Party may settle or compromise any third party Claim or litigation only with the consent of the Indemnified Party which consent may not be unreasonably withheld, delayed or conditioned. Notwithstanding the fact that the Indemnifying Party has assumed the defense of any third party Claim, the Indemnified Party shall have the right at all times to participate in the defense, settlement, negotiation or litigation relating to such Claim at its own expense. In the event that the Indemnifying Party does not assume the defense of any matter which is the proper subject of indemnification as above provided, then the Indemnified Party shall have the right to defend any such third party Claim or demand, and will be entitled to settle any such Claim or demand in its discretion, all at the expense of the Indemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each party shall be available to the other with respect to such defense. If the Indemnifying Party fails to give a notice disputing the validity or amount of a Claim (a “Claim Response”) within twenty Business Days following receipt of a Claim Notice, then the Claim shall be deemed to be accepted and the Indemnified Party may pursue whatever legal remedies may be available to recover the Losses as to which the Indemnified Party is seeking indemnification.

Assertion of Indemnification Claim. Any Subject to Section 6.5, any of the Seller FMB Indemnitees or any of the Purchaser JV Corp Indemnitees under Section 5.2 and 5.36.2 or Section 6.3, as the case may be (an “Indemnified Party”), shall give timely notice (a “Claim Notice”) to the Party from whom such indemnification is sought (each, an “Indemnifying Party”) after the Indemnified Party has actual knowledge of any claim as to which indemnification may be sought (a “Claim”) and the amount thereof, if known, and supply any other information in the possession of the Indemnified Party regarding such Claim, and will permit the Indemnifying Party (at its expense) to assume the defense of any third party Claim and any litigation resulting therefrom, including, without limitation, any audit by any Governmental Authority with respect to Taxes, provided that counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure by the Indemnified Party to give notice as provided herein will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the Indemnifying Party is materially damaged as a result of the failure to give notice. The Indemnifying Party may settle or compromise any third party Claim or litigation only with the consent of the Indemnified Party which consent may not be unreasonably withheld, delayed or conditioned. Notwithstanding the fact that the Indemnifying Party has assumed the defense of any third party Claim, the Indemnified Party shall have the right at all times to participate in the defense, settlement, negotiation or litigation relating to such Claim at its own expense. In the event that the Indemnifying Party does not assume the defense of any matter which is the proper subject of indemnification as above provided, then the Indemnified Party shall have the right to defend any such third party Claim or demand, and will be entitled to settle any such Claim or demand in its discretion, all at the expense of the Indemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each party Party shall be available to the other with respect to such defense. If the Indemnifying Party fails to give a notice disputing the validity or amount of a Claim (a “Claim Response”) within twenty Business Days following receipt of a Claim Notice, then the Claim shall be deemed to be accepted and the Indemnified Party may pursue whatever legal remedies may be available to recover the Losses as to which the Indemnified Party is seeking indemnification. The Parties acknowledge and agree that JV Corp shall have the right to set off any Loss with respect to which any JV Corp Indemnitee has a right to indemnification hereunder against any obligations of JV Corp under the Modified Note or, if pledged pursuant to the Stockholders Agreement, to exercise its rights with respect to the JV Corp Common Stock to satisfy any Loss with respect to which any JV Corp Indemnitee has a right to indemnification hereunder, and such rights shall in no way limit any other right or remedy available to JV Corp under this Agreement, at law or in equity, provided however, that (i) JV Corp shall not set off against the Modified Note until the Escrow Funds held by the Escrow Agent (calculated after deduction for amounts claimed with respect to then pending or unresolved matters) have been exhausted or disbursed to FMB in accordance with this Agreement and the Escrow Agreement, and (ii) JV Corp shall not exercise any rights with respect to the JV Corp Common Stock (if pledged pursuant to the Stockholders Agreement) until its set off rights against the Modified Note have been exhausted. Other than the right to set off against the balance due under the Modified Note, no JV Corp Indemnitee shall have any recourse against the holder of the Modified Note simply by virtue of the fact that such holder holds the Modified Note.

Assertion of Indemnification Claim. Any of Either the Seller Indemnitees Shareholders or any of the Purchaser Indemnitees under Section 5.2 and 5.3Parent, as the case may be (an “"Indemnified Party”"), shall give timely notice (a “Claim Notice”) to the Party from whom such indemnification is sought other (each, an “"Indemnifying Party”") as soon as possible after the Indemnified Party has actual knowledge of any claim as to which indemnification may be sought (a “Claim”) and the amount thereof, if known, and supply any other information in the possession of the Indemnified Party regarding such Claimclaim, and will permit the Indemnifying Party (at its expense) to assume the defense of any third party Claim claim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who shall conduct the defense of such Claim claim or litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure omission by the Indemnified Party to give notice as provided herein will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the omission results in a failure of actual notice to the Indemnifying Party and the Indemnifying Party is materially damaged as a result of the failure to give notice. The Indemnifying Party may settle or compromise any third party Claim claim or litigation only with the consent of the Indemnified Party which consent may not be unreasonably withheld, delayed or conditioned. Notwithstanding the fact that the Indemnifying Party has assumed the defense of any third party Claim, the The Indemnified Party shall have the right at all times to participate in the defense, settlement, negotiation negotiations or litigation relating to such Claim any third party claim or demand at its own expense. In the event that the Indemnifying Party does not assume the defense of any matter which is the proper subject of indemnification as above provided, then the Indemnified Party shall have the right to defend any such third party Claim claim or demand, and will be entitled to settle any such Claim claim or demand in its discretion, all at the expense of the Indemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each party shall be available to the other with respect to such defense. If the Indemnifying Party fails to give a notice disputing the validity or amount of a Claim (a “Claim Response”) within twenty Business Days following receipt of a Claim Notice, then the Claim shall be deemed to be accepted and the Indemnified Party may pursue whatever legal remedies may be available to recover the Losses as to which the Indemnified Party is seeking indemnification.

Assertion of Indemnification Claim. Any of Either the Seller Indemnitees Shareholder or any of the Purchaser Indemnitees under Section 5.2 and 5.3Parent, as the case may be (an “"Indemnified Party”"), shall give timely notice (a “Claim Notice”) to the Party from whom such indemnification is sought other (each, an “"Indemnifying Party”") as soon as possible after the Indemnified Party has actual knowledge of any claim as to which indemnification may be sought (a “Claim”) and the amount thereof, if known, and supply any other information in the possession of the Indemnified Party regarding such Claimclaim, and will permit the Indemnifying Party (at its expense) to assume the defense of any third party Claim claim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who shall conduct the defense of such Claim claim or litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure omission by the Indemnified Party to give notice as provided herein will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the omission results in a failure of actual notice to the Indemnifying Party and the Indemnifying Party is materially damaged as a result of the failure to give notice. The Indemnifying Party may settle or compromise any third party Claim claim or litigation only with the consent of the Indemnified Party which consent may not be unreasonably withheld, delayed or conditioned. Notwithstanding the fact that the Indemnifying Party has assumed the defense of any third party Claim, the The Indemnified Party shall have the right at all times to participate in the defense, settlement, negotiation negotiations or litigation relating to such Claim any third party claim or demand at its own expense. In the event that the Indemnifying Party does not assume the defense of any matter which is the proper subject of indemnification as above provided, then the Indemnified Party shall have the right to defend any such third party Claim claim or demand, and will be entitled to settle any such Claim claim or demand in its discretion, all at the expense of the Indemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each party shall be available to the other with respect to such defense. If the Indemnifying Party fails to give a notice disputing the validity or amount of a Claim (a “Claim Response”) within twenty Business Days following receipt of a Claim Notice, then the Claim shall be deemed to be accepted and the Indemnified Party may pursue whatever legal remedies may be available to recover the Losses as to which the Indemnified Party is seeking indemnification.

Assertion of Indemnification Claim. Any of Either the Seller Indemnitees or any of HRH, or the Purchaser Indemnitees under Section 5.2 and 5.3Surviving Corporation, as the case may be (an “"Indemnified Party”"), shall give timely notice (a “Claim Notice”) to the Party from whom such indemnification is sought other (each, an “"Indemnifying Party”") as soon as possible after the Indemnified Party has actual knowledge of any claim as to which indemnification may be sought (a “Claim”) and the amount thereof, if known, and supply any other information in the possession of the Indemnified Party regarding such Claimclaim, and will permit the Indemnifying Party (at its expense) to assume the defense of any third party Claim claim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who shall conduct the defense of such Claim claim or litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure omission by the Indemnified Party to give notice as provided herein will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the omission results in a failure of actual notice to the Indemnifying Party and the Indemnifying Party is materially damaged as a result of the failure to give notice. The Indemnifying Party may settle or compromise any third party Claim claim or litigation only with the consent of the Indemnified Party which consent may not be unreasonably withheld, delayed or conditioned. Notwithstanding the fact that the Indemnifying Party has assumed the defense of any third party Claim, the The Indemnified Party shall have the right at all times to participate in the defense, settlement, negotiation negotiations or litigation relating to such Claim any third party claim or demand at its own expense. In the event that the Indemnifying Party does not assume the defense of any matter which is the proper subject of indemnification as above provided, then the Indemnified Party shall have the right to defend any such third party Claim claim or demand, and will be entitled to settle any such Claim claim or demand in its discretion, all at the expense of the Indemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each party shall be available to the other with respect to such defense. If the Indemnifying Party fails to give a notice disputing the validity or amount of a Claim (a “Claim Response”) within twenty Business Days following receipt of a Claim Notice, then the Claim shall be deemed to be accepted and the Indemnified Party may pursue whatever legal remedies may be available to recover the Losses as to which the Indemnified Party is seeking indemnification.13.5

Assertion of Indemnification Claim. Any of the Seller Indemnitees or any of the Purchaser Indemnitees under Section 5.2 and 5.3A party seeking indemnification, as the case may be (an “"Indemnified Party”"), shall give timely notice (a “Claim Notice”) to the Party from whom such indemnification is sought other (each, an “"Indemnifying Party”") as soon as possible after the Indemnified lndemnified Party has actual knowledge of any claim as to which indemnification may be sought (a “Claim”) and the amount thereof, if known, and supply any other information in the possession of the Indemnified Party regarding such Claimclaim, and will permit the Indemnifying lndemnifying Party (at its expense) to assume the defense of any third party Claim claim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who shall conduct the defense of such Claim claim or litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure omission by the Indemnified lndemnified Party to give notice as provided herein will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the Indemnifying omission results in a failure of actual notice to the lndemnifying Party and the lndemnifying Party is materially damaged as a result of the failure to give noticenotice in a timely manner. Failure by the lndemnifying Party to notify the lndemnified Party of its election to defend any such claim, action or proceeding within a reasonable time, but in no event more than thirty (30) days after notice thereof shall have been given to the lndemnifying Party, shall be deemed a waiver by the lndemnifying Party of its right to defend such claim, action or proceeding; provided, however, that the Indemnifying party shall not be deemed to have waived its right to contest and defend against any claim of the lndemnified Party for indemnification hereunder based upon or arising out of such claim, action or proceeding. The Indemnifying Party may settle or compromise any third party Claim claim or litigation only with the consent of the Indemnified Party lndemnified Party, which consent may not be unreasonably withheld, delayed or conditioned. Notwithstanding the fact that the Indemnifying Party has assumed the defense of any third party Claim, the The Indemnified Party shall have the right at all times to participate in the defense, settlement, negotiation negotiations or litigation relating to such Claim any third party. claim or demand at its own expense. In the event that the Indemnifying lndemnifying Party does not assume the defense of any matter which is the proper subject of indemnification as above provided, then the Indemnified Party shall have the right to defend any such third party Claim claim or demand, and will be entitled to settle any such Claim claim or demand in its discretion, all at the expense of the Indemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each party shall be available to the other with respect to such defense. If the Indemnifying Party fails to give a notice disputing the validity or amount of a Claim (a “Claim Response”) within twenty Business Days following receipt of a Claim Notice, then the Claim shall be deemed to be accepted and the Indemnified Party may pursue whatever legal remedies may be available to recover the Losses as to which the Indemnified Party is seeking indemnification.

Assertion of Indemnification Claim. Any of Either the Seller Indemnitees Shareholders or any of the Purchaser Indemnitees under Section 5.2 and 5.3Parent, as the case may be (an “"Indemnified Party”"), shall give timely notice (a “Claim Notice”) to the Party from whom such indemnification is sought other (each, an “"Indemnifying Party”") as soon as possible after the Indemnified Party has actual knowledge of any claim as to which indemnification may be sought (a “Claim”) and the amount thereof, if known, and supply any other information in the possession of the Indemnified Party regarding such Claimclaim, and will permit the Indemnifying Party (at its expense) to assume the defense of any third party Claim claim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who shall conduct the defense of such Claim claim or litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure omission by the Indemnified Party to give notice as provided herein will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the omission results in a failure of actual notice to the Indemnifying Party and the Indemnifying Party is materially damaged as a result of the failure to give notice. The Indemnifying Party may settle or compromise any third party Claim claim or litigation only with the consent of the Indemnified Party which consent may not be unreasonably withheld, delayed or conditioned. Notwithstanding the fact that the Indemnifying Party has assumed the defense of any third party Claim, the The Indemnified Party shall have the right at all times to participate in the defense, settlement, negotiation negotiations or litigation relating to such Claim any third party claim or demand at its own expense. In the event that the Indemnifying Party does not assume the defense of any matter which is the proper subject of indemnification as above provided, then the Indemnified Party shall have the right to defend any such third party Claim claim or demand, and will be entitled to settle any such Claim claim or demand in its discretion, all at the expense of the Indemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each party shall be available to the other with respect to such defense. If the Indemnifying Party fails to give a notice disputing the validity or amount of a Claim (a “Claim Response”) within twenty Business Days following receipt of a Claim Notice, then the Claim shall be deemed to be accepted and the Indemnified Party may pursue whatever legal remedies may be available to recover the Losses as to which the Indemnified Party is seeking indemnification.9.6

Assertion of Indemnification Claim. Any of Either the Seller Indemnitees Shareholders or any of the Purchaser Indemnitees under Section 5.2 and 5.3Parent, as the case may be (an “"Indemnified Party”"), shall give timely notice (a “Claim Notice”) to the Party from whom such indemnification is sought other (each, an “"Indemnifying Party”") as soon as possible after the Indemnified Party has actual knowledge of any claim as to which indemnification may be sought (a “Claim”) and the amount thereof, if known, and supply any other information in the possession of the Indemnified Party regarding such Claimclaim, and will permit the Indemnifying Party (at its expense) to assume the defense of any third party Claim claim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who shall conduct the defense of such Claim claim or litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure omission by the Indemnified Party to give notice as provided herein will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the omission results in a failure of actual notice to the Indemnifying Party and the Indemnifying Party is materially damaged as a result of the failure to give notice. The Indemnifying Party may settle or compromise any third party Claim claim or litigation only with the consent of the Indemnified Party which consent may not be unreasonably withheld, delayed or conditioned. Notwithstanding the fact that the Indemnifying Party has assumed the defense of any third party Claim, the The Indemnified Party shall have the right at all times to participate in the defense, settlement, negotiation negotiations or litigation relating to such Claim any third party claim or demand at its own expense. In the event that the Indemnifying Party does not assume the defense of any matter which is the proper subject of indemnification as above provided, then the Indemnified Party shall have the right to defend any such third party Claim claim or demand, and will be entitled to settle any such Claim claim or demand in its discretion, all at the expense of the Indemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each party shall be available to the other with respect to such defense. If Further, in calculating all such indemnifiable claims, the Indemnifying Party fails parties agree to give a notice disputing calculate such indemnities, so far as practicable, net of any tax effects and insurance recoveries, and at their net present value. 9.6 Limitation of Amount of Indemnity and Escrow of Parent Common Stock. The indemnity provided to Parent pursuant to Section 9.3 and the validity or amount of a Claim (a “Claim Response”) within twenty Business Days following receipt of a Claim Notice, then the Claim indemnity provided by Parent to Shareholders pursuant to Section 9.4 shall be deemed limited to an amount equal to 40,000 shares of Parent's common stock times $13.75 per share, which is the approximate per share value upon which this Agreement is predicated. Notwithstanding anything in the foregoing to the contrary, Parent shall retain on the Effective Date from the shares of its common stock to be accepted delivered to the Shareholders, according to the percentage ownership each such Shareholder has in Merging Entity, as security for the indemnity provided to it herein and particularly in light of Merging Entity's lack of errors and omissions coverage, 10,000 shares of its common stock ("Escrowed Shares"). By their signatures to this Agreement, each Shareholder has granted to Parent a security interest in his portion of the Escrowed Shares, and has consented to the escrow provision described herein and has granted unto Parent a continuing limited power of attorney to act over his proportionate number of the Escrowed Shares pursuant to this Agreement, which power of attorney is coupled with an interest and is not revocable until the later of: (i) December 31, 1997; (ii) determination and settlement of any amounts pursuant to Section 14.6; and (iii) determination and settlement of any amounts claimed by Parent as of December 31, 1997, pursuant to Section 9.3 ("Release Date"). Between the Effective Date and the Indemnified Party may pursue whatever legal remedies may Release Date, Parent shall hold the Escrowed Shares and shall deposit any dividends received thereon in an interest-bearing account. Upon the Release Date, and absent a written directive to the contrary from each such Shareholder not desiring to receive his shares pro rata, Parent shall distribute the Escrowed Shares, less any decrease in such shares pursuant to this Agreement, plus any additional shares issued pursuant to this Agreement, to the Shareholders, pro rata. Dividends on the Escrowed Shares and the interest earned thereon ("Escrow Funds") shall be available distributed in the same manner determined according to recover the Losses as immediately preceding sentence. If Escrowed Shares were decreased to which satisfy the Indemnified Party indemnity provided herein, the Escrow Funds shall be reduced by a percentage equal to the fraction established where the numerator is seeking indemnificationthe number of Escrowed Shares used to satisfy such indemnity and the denominator is the number of Escrowed Shares. 10.