Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 4 contracts
Sources: Share Redemption Agreement, Share Redemption Agreement (AsiaCo Acquisition LTD), Share Redemption Agreement (General Electric Capital Corp)
Assumption. If a an AmBev Third Party Claim is made against an indemnified party, the indemnifying party Interbrew shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyInterbrew; provided, however, that such counsel is not reasonably objected to by the indemnified partyAmBev. Should the indemnifying party Interbrew so elect to assume the defense of a an AmBev Third Party Claim, the indemnifying party Interbrew shall not be liable to the indemnified party applicable AmBev Indemnitee for any legal expenses subsequently incurred by the indemnified party such AmBev Indemnitee in connection with the defense thereof. If the indemnifying party Interbrew assumes such defense, the indemnified party AmBev shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyInterbrew), at its own expense, separate from the counsel employed by the indemnifying partyInterbrew, it being understood that the indemnifying party Interbrew shall control such defense. The indemnifying party Interbrew shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party AmBev for any period during which the indemnifying party Interbrew has not assumed the defense thereof (other than during any period in which the indemnified party an AmBev Indemnitee shall have failed to give notice of the AmBev Third Party Claim as provided above). If the indemnifying party Interbrew chooses to defend or prosecute a an AmBev Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s Interbrew's request) the provision to the indemnifying party, Interbrew of records and information that are reasonably relevant to such AmBev Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party Interbrew assumes the defense of a an AmBev Third Party Claim, the indemnified party no AmBev Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of discharge, any judgment for, such AmBev Third Party Claim without the indemnifying party’s Interbrew's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party Interbrew assumes the defense of a an AmBev Third Party Claim, the indemnified party applicable AmBev Indemnitee shall agree to any settlement, compromise or discharge of a such AmBev Third Party Claim that the indemnifying party Interbrew may recommend and that by its terms obligates the indemnifying party Interbrew to pay the full amount of the liability in connection with such AmBev Third Party Claim, which releases the indemnified party AmBev completely in connection with such AmBev Third Party Claim and that would could not otherwise adversely affect the indemnified partyAmBev. Notwithstanding the foregoing, the indemnifying party Interbrew shall not be entitled to assume the defense of any AmBev Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party any AmBev Indemnitee in defending such AmBev Third Party Claim) if the AmBev Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party an AmBev Indemnitee that the indemnified party AmBev reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the AmBev Third Party Claim can be so separated from that for money damages, the indemnifying party Interbrew shall be entitled to assume the defense of the portion relating to money damages.
Appears in 4 contracts
Sources: Incorporation Agreement (InBev Corporate Holdings Inc.), Incorporacao Agreement (Interbrew S A), Incorporacao Agreement (American Beverage Co Ambev)
Assumption. If a an Interbrew Third Party Claim is made against an indemnified party, the indemnifying party AmBev shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyAmBev; provided, however, that such counsel is not reasonably objected to by the indemnified partyInterbrew. Should the indemnifying party AmBev so elect to assume the defense of a an Interbrew Third Party Claim, the indemnifying party AmBev shall not be liable to the indemnified party applicable Interbrew Indemnitee for any legal expenses subsequently incurred by the indemnified party such Interbrew Indemnitee in connection with the defense thereof. If the indemnifying party AmBev assumes such defense, the indemnified party Interbrew shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyAmBev), at its own expense, separate from the counsel employed by the indemnifying partyAmBev, it being understood that the indemnifying party AmBev shall control such defense. The indemnifying party AmBev shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Interbrew for any period during which the indemnifying party AmBev has not assumed the defense thereof (other than during any period in which the indemnified party an Interbrew Indemnitee shall have failed to give notice of the Interbrew Third Party Claim as provided above). If the indemnifying party AmBev chooses to defend or prosecute a an Interbrew Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s AmBev's request) the provision to the indemnifying party, AmBev of records and information that are reasonably relevant to such Interbrew Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party AmBev assumes the defense of a an Interbrew Third Party Claim, the indemnified party no Interbrew Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of discharge, any judgment for, such Interbrew Third Party Claim without the indemnifying party’s AmBev's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party AmBev assumes the defense of a an Interbrew Third Party Claim, the indemnified party applicable Interbrew Indemnitee shall agree to any settlement, compromise or discharge of a such Interbrew Third Party Claim that the indemnifying party AmBev may recommend and that by its terms obligates the indemnifying party AmBev to pay the full amount of the liability in connection with such Interbrew Third Party Claim, which releases the indemnified party Interbrew completely in connection with such Interbrew Third Party Claim and that would could not otherwise adversely affect the indemnified partyInterbrew. Notwithstanding the foregoing, the indemnifying party AmBev shall not be entitled to assume the defense of any Interbrew Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party an Interbrew Indemnitee in defending such Interbrew Third Party Claim) if the Interbrew Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party an Interbrew Indemnitee that the indemnified party Interbrew reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Interbrew Third Party Claim can be so separated from that for money damages, the indemnifying party AmBev shall be entitled to assume the defense of the portion relating to money damages.
Appears in 4 contracts
Sources: Incorporation Agreement (InBev Corporate Holdings Inc.), Incorporacao Agreement (Interbrew S A), Incorporacao Agreement (American Beverage Co Ambev)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 3 contracts
Sources: Agreement for the Sale and Assignment of Rights (NPS Pharmaceuticals Inc), Agreement for Sale and Assignment of Rights (NPS Pharmaceuticals Inc), Agreement for Sale and Assignment of Rights
Assumption. If a an Interbrew Third Party Claim is made against an indemnified party, BRC, on behalf of the indemnifying party other Indemnifying SB Parties, shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyBRC; provided, however, that such counsel is not reasonably objected to by the such indemnified party. Should the indemnifying party BRC so elect to assume the defense of a an Interbrew Third Party Claim, the indemnifying party BRC shall not be liable to the indemnified party for any legal expenses subsequently incurred by the such indemnified party in connection with the defense thereof. If the indemnifying party BRC assumes such defense, the such indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyBRC), at its own expense, separate from the counsel employed by the indemnifying partyBRC, it being understood that the indemnifying party BRC shall control such defense. The indemnifying party BRC shall be liable for the fees and expenses of one counsel and one local counsel employed by the such indemnified party for any period during which the indemnifying party BRC has not assumed the defense thereof (other than during any period in which the such indemnified party shall have failed to give notice of the Interbrew Third Party Claim as provided above). If the indemnifying party BRC chooses to defend or prosecute a an Interbrew Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s BRC's request) the provision to the indemnifying party, BRC of records and information that are reasonably relevant to such Interbrew Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party BRC assumes the defense of a an Interbrew Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Interbrew Third Party Claim without the indemnifying party’s BRC's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party BRC assumes the defense of a an Interbrew Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a an Interbrew Third Party Claim that the indemnifying party BRC may recommend and that by its terms obligates the indemnifying party BRC to pay the full amount of the liability Liability in connection with such Interbrew Third Party Claim, which releases the such indemnified party completely in connection with such Interbrew Third Party Claim and that would could not otherwise adversely affect the such indemnified party. Notwithstanding the foregoing, the indemnifying party BRC shall not be entitled to assume the defense of any Interbrew Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Interbrew in defending such Interbrew Third Party Claim) if the Interbrew Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party Interbrew that the indemnified party Interbrew reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Interbrew Third Party Claim can be so separated from that for money damages, the indemnifying party BRC shall be entitled to assume the defense of the portion relating to money damages.
Appears in 3 contracts
Sources: Contribution and Subscription Agreement (Interbrew S A), Contribution and Subscription Agreement (American Beverage Co Ambev), Contribution and Subscription Agreement (American Beverage Co Ambev)
Assumption. If a SB Third Party Claim is made against an indemnified party, the indemnifying party each Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Parties; provided, however, that such counsel is not reasonably objected to by the such indemnified party. Should the indemnifying party any Indemnifying Party so elect to assume the defense of a an SB Third Party Claim, none of the indemnifying party Indemnifying Parties shall not be liable to the any indemnified party for any legal expenses subsequently incurred by the such indemnified party in connection with the defense thereof. If the indemnifying party any Indemnifying Party assumes such defense, the such indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyIndemnifying Parties), at its own expense, separate from the counsel employed by the indemnifying party, Indemnifying Parties it being understood that the indemnifying party Indemnifying Parties shall control such defense. The indemnifying party relevant Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the such indemnified party for any period during which the indemnifying party has Indemnifying Parties have not assumed the defense thereof (other than during any period in which the such indemnified party shall have failed to give notice of the SB Third Party Claim as provided above). If the indemnifying party any Indemnifying Party chooses to defend or prosecute a SB Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s any Indemnifying Party's request) the provision to the indemnifying party, Indemnifying Parties of records and information that are reasonably relevant to such SB Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party any Indemnifying Party assumes the defense of a SB Third Party Claim, the no indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such SB Third Party Claim without the indemnifying party’s indemnified parties' prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party any Indemnifying Party assumes the defense of a an SB Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a an SB Third Party Claim that the indemnifying such indemnified party may recommend and that by its terms obligates the indemnifying party Interbrew to pay the full amount of the liability in connection with such SB Third Party Claim, which releases the indemnified party completely in connection with such SB Third Party Claim and that would could not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying no indemnified party shall not be entitled to assume the defense of any SB Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such SB Third Party Claim) if the SB Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the SB Third Party Claim can be so separated from that for money damages, the indemnifying relevant indemnified party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 3 contracts
Sources: Contribution and Subscription Agreement (Interbrew S A), Contribution and Subscription Agreement (American Beverage Co Ambev), Contribution and Subscription Agreement (American Beverage Co Ambev)
Assumption. If a Third Party Claim is made against an indemnified partythe Indemnified Person, the indemnifying party Indemnifying Person shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Person that is reasonably acceptable to the Indemnified Person; provided, howeverthat the Indemnifying Person shall not be entitled to assume or continue control of the defense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal or quasi-criminal Proceeding, that such counsel (ii) the Third Party Claim principally seeks an injunction or equitable relief against the Indemnified Person, (iii) the Third Party Claim would reasonably be expected to have a material adverse effect on the Indemnified Person’s business or principally relates to its customers or (iv) the Indemnifying Person has failed or is not reasonably objected failing to by use diligent and good faith efforts to defend or prosecute the indemnified partyThird Party Claim. Should the indemnifying party Indemnifying Person so elect in writing to assume the defense of a Third Party Claim, (x) the indemnifying party Indemnifying Person shall defend such Third Party Claim in good faith and (y) the Indemnifying Person shall not be liable to the indemnified party Indemnified Person for any legal expenses subsequently incurred by the indemnified party Indemnified Person in connection with the defense thereof; provided, that if on the advice of counsel to the Indemnified Person, (1) there are legal defenses available to the Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (2) there exists reasonable likelihood of a conflict of interest between the Indemnifying Person and the Indemnified Person, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Person in each jurisdiction for which the Indemnified Person determines counsel is required. If the indemnifying party Indemnifying Person assumes such defense, the indemnified party Indemnified Person shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected counsel, subject to by the indemnifying party), at its own expenseimmediately preceding sentence, separate from the counsel employed by the indemnifying partyIndemnifying Person, it being understood that the indemnifying party Indemnifying Person shall control such defense. The indemnifying party the Indemnifying Person shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Person for any period during which the indemnifying party Indemnifying Person has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Person shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Person chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall reasonably cooperate in the defense or prosecution thereof upon the request of, and at the indemnifying party shall reimburse sole cost and expense of, the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))Indemnifying Person. Such cooperation shall include the retentionretention of, and (upon the indemnifying partyIndemnifying Person’s written request) , the provision to the indemnifying partyof, of records and information that are reasonably relevant to such Third Party Claim, Claim (which shall be subject to Section 5.1 and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderSection 6.14(h)). Whether or not the indemnifying party Indemnifying Person assumes the defense of a Third Party Claim, the indemnified party Indemnified Person shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying partyIndemnifying Person’s prior written consent (which consent shall not to be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party Indemnifying Person assumes the defense of a Third Party Claim, the indemnified party Indemnified Person shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party Indemnifying Person may recommend and that by its terms (i) involves only money damages and does not seek an injunction, equitable relief or other nonmonetary relief against any the Indemnified Person, including the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Person, (ii) contains an unconditional release of each the Indemnified Person with respect to such Third Party Claim, (iii) includes no finding or admission of fault or misconduct by the Indemnified Person, and (iv) obligates the indemnifying party Indemnifying Person to pay the full amount of the liability in connection with such Third Party Claimtherewith (a settlement, compromise or discharge meeting all requirements of clauses (i) through (iv), a “Specified Settlement”); provided, however, that the Indemnifying Person shall not, without prior written consent of the Indemnified Person (which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party consent shall not be entitled unreasonably withheld, conditioned or delayed), settle, compromise or offer to assume the defense of settle or compromise any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending except if such Third Party Claim) if the Third Party Claim seeks an ordersettlement, injunction compromise or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there offer is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesSpecified Settlement.
Appears in 3 contracts
Sources: Transaction Agreement (New Whale Inc.), Transaction Agreement (Endeavor Group Holdings, Inc.), Transaction Agreement (World Wrestling Entertainmentinc)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction injunction, or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (Comstock Inc.), Membership Interest Purchase Agreement (AMERICAN BATTERY TECHNOLOGY Co), Membership Interest Purchase Agreement (AMERICAN BATTERY TECHNOLOGY Co)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, provided that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereofthereof provided that if (i) the indemnifying party fails to take reasonable steps necessary to defend diligently such matter or (ii) a reasonable likelihood exists of a conflict of interest between the indemnifying party and the indemnified party, the indemnified party may assume its own defense, and the indemnifying party shall be liable for all reasonable costs or expenses paid or incurred by the indemnified party in connection therewith. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses elects to defend or prosecute assume the defense of a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon at the indemnifying party’s request) the provision to the indemnifying party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.’s
Appears in 3 contracts
Sources: Purchase Agreement (CLST Holdings, Inc.), Purchase Agreement (CLST Holdings, Inc.), Purchase Agreement (CLST Holdings, Inc.)
Assumption. If a Third Party Claim is made against an indemnified partyparty and the indemnifying party affirms in writing that the indemnifying party is required to indemnify the indemnified party under Section 9.02 or 9.03 in respect of such Third Party Claim, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party; provided, further, that the indemnifying party shall not be entitled to assume the defense of any Third-Party Claim if (i) the indemnified party shall have one or more legal or equitable defenses available to it which are different from or in addition to those available to the indemnifying party, and, in the reasonable opinion of the indemnified party, counsel for the indemnifying party could not adequately represent the interests of the indemnified party because such interests could be in conflict with those of the indemnifying party, (ii) such Third-Party Claim is reasonably likely to have a material and adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the indemnifying party, (iii) such Third-Party Claim involves injunctive or other non-monetary relief (provided that if such Third-Party Claim includes a request for injunctive or other non-monetary relief, the indemnifying party may assume the defense of such Third-Party Claim so long as the indemnified party has joint control of the defense of the portion of such Third-Party Claim relating to the request for injunctive or other non-monetary relief) or (iv) the indemnifying party shall not have assumed the defense of such Third-Party Claim in a timely fashion (but in any event within 30 days of written notice of such Third-Party Claim). Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, the indemnifying party shall keep the indemnified party reasonably apprised of the status of the Third-Party Claim and shall furnish the indemnified party with copies of all notices and documents (including court papers) received by the indemnifying party relating to the Third Party Claim, and all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnifying party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnified party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely and unconditionally from all liability in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Anglogold Ashanti LTD), Stock Purchase Agreement (Newmont Mining Corp /De/)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying Indemnifying Party shall (unless the Indemnifying Party is also a party shall to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate) be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, Indemnifying Party (provided that such counsel is not reasonably objected to by the indemnified partyIndemnified Party), at its own expense by giving written notice to the Indemnified Party within fifteen Business Days of receiving notice of the Third Party Claim. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 7.4(b), the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 7.4(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (provided such counsel is not reasonably objected to by the indemnifying partyIndemnifying Party), at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis at such times and places as may be reasonably necessary to provide defend against such Third Party Claim for the purpose of providing additional information and information, explanation of any material provided hereunderor testimony in connection with such Third Party Claim. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall defend such Third Party Claim vigorously and diligently to final conclusion or settlement of such Third Party Claim; provided that the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Cheniere Energy Partners, L.P.)
Assumption. If a Third Party Claim is made against an indemnified party, except as otherwise provided in this Section 8.06(b), the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect in writing to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable and documented fees and expenses of one counsel and one local counsel employed by the indemnified party (including counsel fees and expenses) as they are incurred, for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided abovein accordance with Section 8.06(a)). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim; provided, however, that the indemnifying party shall not, without prior written consent of the indemnified party, settle, compromise or offer to settle or compromise any Third Party Claim and on a basis that would not otherwise adversely affect result in (i) injunctive or other nonmonetary relief against the indemnified party, including the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the indemnified party or (ii) a finding or admission of fault or misconduct by the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and control of, and shall be liable for pay the reasonable fees and expenses of one counsel and one local counsel incurred by retained by, the indemnified party in defending connection with a Third Party Claim as they are incurred if: (A) such Third Party ClaimClaim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (B) if the such Third Party Claim seeks an ordernon-monetary relief which, injunction or other equitable relief or relief for other than money damages against if granted, could adversely affect the indemnified party party, and that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be readily separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If damages (provided that if such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages), (C) the indemnified party has been advised in writing by counsel that a reasonable likelihood exists of conflict of interest between the indemnifying party and the indemnified party or (D) the insurer under the R&W Insurance Policy has assumed the defense of such Third Party Claim in accordance with the terms of the R&W Insurance Policy, if applicable.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Valvoline Inc), Equity Purchase Agreement (Valvoline Inc)
Assumption. If Except as provided in Section 8.02(c) of this TMA, if a Third Party Tax Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with professional advisors and counsel selected by the indemnifying party; provided, however, that such professional advisors or counsel is are not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Tax Claim, the indemnifying party shall not be liable to the indemnified party for any legal fees or expenses relating to such professional advisors or counsel subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ professional advisors and counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the professional advisors and counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel professional advisors and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Tax Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Tax Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, cooperating and assisting in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters. Whether or not the indemnifying party assumes the defense of a Third Party Tax Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Tax Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Tax Claim, the indemnified party shall agree to any settlement, compromise compromise, or discharge of a Third Party Tax Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Tax Claim; provided that if such settlement, which releases compromise or discharge imposes conditions, costs or other detriments (in addition to the indemnified party completely liability in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Tax Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for upon the indemnified party, there is a conflict of interest between the such indemnified party and the indemnifying partymay use its reasonable judgment in determining whether to so agree, then the indemnifying party shall such agreement not to be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesunreasonably withheld.
Appears in 2 contracts
Sources: Tax Matters Agreement (Ashland Inc), Tax Matters Agreement (Ashland Inc)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof andand (unless the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party provides the Indemnifying Party with written advice of outside counsel to the Indemnified Party to the effect that there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party that, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice the prosecution of the defenses available to such Indemnified Party (“Conflict of Interest”)), if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should The Indemnifying Party shall give written notice within ten Business Days of Document Delivery, indicating whether the indemnifying party so elect Indemnifying Party intends to participate in or assume the defense of a Third Party Claim, and if the indemnifying party Indemnifying Party assumes such defense, the Indemnifying Party shall acknowledge that it has, and shall be deemed to have, accepted and agreed to its indemnification obligations for such claim. If the Indemnifying Party assumes the defense, the Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 6.04(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyIndemnifying Party), at its own expenseexpense (except in the case of a Conflict of Interest in which case the Indemnifying Party shall bear legal expenses related to the Indemnified Party’s counsel), separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Party shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party Indemnifying Party participates in or assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall agree to not admit any settlementliability with respect to, or settle, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claimdischarge, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect without the indemnified party. Notwithstanding prior written consent of the foregoing, the indemnifying party Indemnified Party (which consent shall not be entitled unreasonably withheld, conditioned or delayed). If the Indemnifying Party elects not to assume the defense of or fails to make any Third Party Claim (and shall be liable for election within the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an orderten Business Day period, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled otherwise fails to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume continue the defense of the portion relating Indemnified Person reasonably and in good faith, the Indemnified Person may, following written notice to money damagesthe Indemnifying Party and an additional ten Business Day period during which the parties will seek in good faith to resolve their differences regarding the defense, assume the defense thereof at the expense of the Indemnifying Party, and a recovery against the Indemnified Party suffered by it in good faith shall be conclusive in its favor against the Indemnifying Party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Yu Dong), Stock Purchase Agreement (Twenty-First Century Fox, Inc.)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not party and reasonably objected acceptable to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected acceptable to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above)) to the extent the Third Party Claim is indemnifiable hereunder. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s reasonable request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which fully releases the indemnified party completely Indemnified Party of any and all obligations in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (NGL Energy Partners LP)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so choosessubject to the limitations set forth in Section 9.04(c), to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that (i) such counsel is not reasonably objected to by the indemnified partyIndemnified Party, (ii) prior to assuming control of such defense, the indemnifying party must furnish the Indemnified Party with evidence that the indemnifying party has adequate resources to defend the Third Party Claim and fulfill its indemnity obligations, if any, hereunder. In the event that the indemnifying party assumes the defense of a Third-Party Claim in accordance with this Section 9.04, the indemnifying party shall have a sixty (60) day period (the “Discovery Period”) following receipt by the indemnifying party of notice of such Third Party Claim during which the indemnifying party shall be entitled to reasonable discovery with respect to the indemnifiable nature of the claims. The indemnifying party and the Indemnified Party shall reasonably cooperate with each other with respect to such discovery. If the indemnifying party does not provide written notice to the Indemnified Party by the end of the Discovery Period that it no longer continues to assume the defense of the Third-Party Claim, the claims made in that Third-Party Claim will be conclusively established for purposes of this Agreement as within the scope of and subject to indemnification hereunder. Should the indemnifying party so elect to assume and continue the defense of a Third Party ClaimClaim in accordance with and subject to the limitations of this Section 9.04, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof following the Discovery Period. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The defense in accordance with and subject to the limitations of this Section 9.04; provided, however that the indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party (A) for any period during which the indemnifying party has not assumed the defense thereof or (other than during any period in which B) if the indemnified party Indemnified Party shall have failed to give notice reasonably conclude, after consultation with outside legal counsel, that there is a conflict of the Third Party Claim as provided above). If interest between the indemnifying party chooses and the Indemnified Party in the conduct of the defense of such claim. Each party shall reasonably cooperate, and shall cause its affiliates to defend or prosecute a Third Party Claim, all the indemnified parties shall reasonably cooperate in the defense or prosecution thereof of any Third Party Claim and the indemnifying party shall reimburse the indemnified party for its retain and provide upon reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of request records and information that are reasonably relevant to such Third Party Claim, Claim and making make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Party Claim in accordance with and subject to the limitations of this Section 9.04, the indemnifying party shall obtain the prior written consent of the Indemnified Party (such consent shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim; provided, however that consent of the Indemnified Party shall not be required for any such settlement if (X) such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Third Party Claim and does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party, (Y) the sole relief provided is monetary damages that are paid in full by the indemnifying party and (Z) such settlement does not permit any order, injunction or other equitable relief to be entered, directly or indirectly, against the Indemnified Party. If the indemnifying party does not assume the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any be entitled to indemnification hereunder with respect thereto if it has admitted liability with respect to, or settlesettled, compromise compromised or discharge or consent to the entry of any judgment fordischarged, such Third Party Claim without the indemnifying party’s prior written consent (which such consent shall not to be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Om Group Inc), Asset and Stock Purchase Agreement (Om Group Inc)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, party that such counsel is not reasonably objected acceptable to by the indemnified party; provided that the indemnifying party shall not be entitled to assume or continue control of the defense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal or quasi-criminal Proceeding, (ii) the Third Party Claim principally seeks an injunction or equitable relief against any indemnified party, (iii) the Third Party Claim when taken together with all other unresolved Third Party Claims has resulted, or would reasonably be expected to result in, Losses in excess of the Cap, (iv) the Third Party Claim would reasonably be expected to have a material adverse effect on the indemnified party’s business or relates to its customers, suppliers, vendors or other service providers or (v) the indemnifying party has failed or is failing to defend or prosecute in good faith the Third Party Claim. Should the indemnifying party so elect in writing to assume the defense of a Third Party Claim, (x) the indemnifying party shall defend such Third Party Claim in good faith and (y) the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof; provided, that if on the advice of counsel to the indemnified party, (1) there are legal defenses available to an indemnified party that are different from or additional to those available to the indemnifying party; or (2) there exists reasonable likelihood of a conflict of interest between the indemnifying party and the indemnified party, the indemnifying party shall be liable for the reasonable fees and expenses of counsel to the indemnified party in each jurisdiction for which the indemnified party determines counsel is required. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected counsel, subject to by the indemnifying party), at its own expenseimmediately preceding sentence, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall reasonably cooperate in the defense or prosecution thereof upon the request of, and at the sole cost and expense of, the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retentionretention of, and (upon the indemnifying party’s written request) , the provision to the indemnifying partyof, of records and information that are reasonably relevant to such Third Party Claim, Claim (which shall be subject to Section 5.07 and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderSection 5.12). Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not to be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms (i) involves only money damages and does not seek an injunction, equitable relief or other nonmonetary relief against any indemnified party, including the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the indemnified party, (ii) contains an unconditional release of each indemnified party with respect to such Third Party Claim, (iii) includes no finding or admission of fault or misconduct by any indemnified party, and (iv) obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claimtherewith (regardless of the Cap) (a settlement, which releases the indemnified party completely in connection with such Third Party Claim and compromise or discharge meeting all requirements of clauses (i) through (iv), a “Specified Settlement”); provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not, without prior written consent of the indemnified party (which consent shall not be entitled unreasonably withheld, conditioned or delayed), settle, compromise or offer to assume the defense of settle or compromise any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending except if such Third Party Claim) if the Third Party Claim seeks an ordersettlement, injunction compromise or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there offer is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesSpecified Settlement.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Pilgrims Pride Corp)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in or control the defense thereof andand (unless the Indemnifying Party fails to actively defend such Third Party Claim), if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 10.5(b), (i) the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 10.5(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expensecounsel, separate from the counsel employed by the indemnifying partyIndemnifying Party, at its own expense unless representation of both Parties by the same counsel would represent a conflict of interest for such counsel under applicable standards of professional conduct for attorneys, in which case the Indemnifying Party will pay the reasonable fees and expenses of such counsel (selection not to be unreasonably objected to by the Indemnifying Party); provided that in no event shall the Indemnifying Party be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to local counsel in each relevant jurisdiction), it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall reasonably cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such reasonable cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on at such times and places as may be reasonably necessary to defend against such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim. In any Third Party Claim, the party responsible for the defense of such claim shall, to the extent reasonably requested by the other party, keep such party informed as to the status of such claims, including all settlement negotiations and offers. If notice is given to an Indemnifying Party of a mutually convenient basis Third Party Claim in accordance with this Section 10.5(b) and the Indemnifying Party does not, within twenty (20) business days after such notice is given, give notice to provide additional information and explanation the Indemnified Party of any material provided hereunderits election to defend such claim, the Indemnifying Party shall not thereafter be entitled to assume the defense thereof. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall defend such Third Party Claim diligently to final conclusion or settlement of such Third Party Claim; provided, however, that the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability Indemnified Party unless such settlement (i) does not involve any finding or admission of any violation of Law or any violation of the rights of any Indemnified Party and would not reasonably be expected to have any adverse effect on any other claims arising out of the same matter that may be made against any Indemnified Party, (ii) does not involve any relief other than monetary damages that are paid in full by the Indemnifying Party and (iii) completely, finally and unconditionally releases the Indemnified Party in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Indemnified Party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Indemnified Party would be entitled to assume indemnification under this Agreement or may otherwise adversely affect the defense of any Third Indemnified Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of (ii) the Third Party Claim can is a criminal, civil or administrative proceeding, or relates to such a proceeding, or the underlying facts or circumstances of which could reasonably be so separated from that for money damagesexpected to give rise to such a proceeding; provided, the indemnifying party however, that, no settlement of any such claim or action shall be entitled to assume entered into, without the defense prior written consent of the portion relating to money damagesIndemnifying Party.
Appears in 2 contracts
Sources: Merger Agreement (Starwood Waypoint Residential Trust), Merger Agreement (Colony Capital, Inc.)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof andand (unless (i) the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its willingness and financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim), if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 10.6(2), (i) the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof and (ii) it shall be conclusively established for purposes hereof that such Third Party Claim is within the scope of and subject to indemnification hereunder. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 10.6(2), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on at such times and places as may be reasonably necessary to defend against such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim. If notice is given to an Indemnifying Party of a mutually convenient basis Third Party Claim in accordance with this Section 10.6(2) and the Indemnifying Party does not, within 10 Business Days after such notice is given, give notice to provide additional information and explanation the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will be bound by any material provided hereunderdetermination made in such Third Party Claim or any settlement, compromise or discharge effected by the Indemnified Party. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall defend such Third Party Claim vigorously and diligently to final conclusion or settlement of such Third Party Claim; provided that the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability Indemnified Party unless such settlement (i) does not involve any finding or admission of any violation of Law or any violation of the rights of any Person and would not have any adverse effect on any other claims that may be made against the Indemnified Party, (ii) does not involve any relief other than monetary damages that are paid in connection with such Third full by the Indemnifying Party Claimand (iii) completely, which finally and unconditionally releases the indemnified party completely Indemnified Party in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyIndemnified Party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Indemnified Party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that Indemnified Party or any of its Affiliates as the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party primary remedy and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief only nominal monetary damages (if any) or other relief portion of (ii) the Third Party Claim can is a criminal, civil or administrative Proceeding, or relates to such a Proceeding, or the underlying facts or circumstances of which could reasonably be so separated from that for money damages, the indemnifying party shall be entitled expected to assume the defense of the portion relating give rise to money damagessuch a Proceeding.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cintas Corp), Securities Purchase Agreement (Stericycle Inc)
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, in assume the defense thereof and(unless the Indemnifying Party indicates it is not willing to defend such Third-Party Claim), if it the Indemnifying Party so chooses, to assume the defense thereof, at its own expense, with counsel selected by the indemnifying party; providedIndemnifying Party, howeverwhich counsel must be reasonably satisfactory to the Indemnified Party, that by giving written notice thereof to the Indemnified Party within 20 Business Days after the Indemnified Party provides a Claim Notice to the Indemnifying Party of such counsel is not reasonably objected to by Third-Party Claim. If the indemnified party. Should the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Third-Party ClaimClaim in accordance with this Section 11.6(b), the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any Party of any attorney-client privilege in connection with such Third-Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third-Party Claim in accordance with this Section 11.6(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected satisfactory to by the indemnifying party)Indemnifying Party, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense. The indemnifying party shall be liable for defense and the fees settlement, arbitration, litigation and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed appellate strategy related to give notice of the Third such Third-Party Claim as provided above)subject to the other terms hereof. If the indemnifying party Indemnifying Party chooses to defend or prosecute assume the defense of a Third Third-Party Claim, all the indemnified parties Indemnified Party shall cooperate in the defense or prosecution thereof thereof. If a Claim Notice is given to the Indemnifying Party of a Third-Party Claim in accordance with this Section 11.6(b) and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified partyIndemnifying Party does not, which are governed by the second preceding sentence within 20 Business Days after such Claim Notice is given, give notice in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision writing to the indemnifying party, Indemnified Party of records and information that are reasonably relevant its election to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes assume the defense of a Third such Third-Party Claim, the indemnified party Indemnified Party shall have the right, but not admit the obligation, to assume its own defense, provided that the Indemnified Party may not settle any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Third-Party Claim without the indemnifying party’s prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld withheld, conditioned or delayed); provided, further, that any such consent provided by an Indemnifying Party shall not prejudice such Indemnifying Party’s ability to dispute whether an Indemnified Party is entitled to indemnification for such Third-Party Claim under this Article XI. If the indemnifying party Indemnifying Party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnifying Party shall agree use its commercially reasonable efforts to any settlement, compromise or discharge of a Third defend such Third-Party Claim vigorously and diligently to final conclusion or settlement of such Third-Party Claim; provided, however, that the indemnifying party may recommend and that by its terms obligates Indemnifying Party shall not settle such Third-Party Claim without the indemnifying party to pay the full amount consent of the liability Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in (i) a finding or admission of any violation of Law or the rights of any Person that would have any adverse effect on any other claims that may be made against any Person, (ii) any relief other than monetary damages paid in full by the Indemnifying Party or any of its Affiliates or (iii) no complete, final and unconditional release of the Indemnified Party in connection with such Third Third-Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim if (and shall be liable for i) the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Indemnified Party would be entitled to assume indemnification under this Agreement, (ii) the defense of any Third Third-Party Claim until it executes is a joint defense agreement with criminal or administrative proceeding, or relates to such a proceeding, or the indemnified party underlying facts or circumstances of which could reasonably be expected to give rise to such a proceeding, or (iii) in form reasonably satisfactory the case of a Purchaser Indemnitee, a Purchaser Indemnitee is seeking full recovery relating to both parties. If such equitable relief or other relief portion of the Third Third-Party Claim can be so separated from that for money damages, under the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesRWI Policy.
Appears in 2 contracts
Sources: Transaction Support Agreement (Rumble Inc.), Transaction Support Agreement (Rumble Inc.)
Assumption. If In the event any suit or other legal Proceeding is brought with respect to such a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, upon reasonable prior notice, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party Indemnifying Party so elect to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyIndemnifying Party), at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party if representation of both Parties by the same counsel creates a conflict of interest under applicable standards of professional conduct, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party , including the right to control all negotiations, settlements, compromises and appeals of any such claim, all of which shall be liable for at the expense of the Indemnifying Party. In any event, if the Indemnifying Party fails to take reasonable steps necessary to defend diligently the action or Proceeding within 20 days after receiving a Claim Notice with respect to the Third Party Claim, the Indemnified Party may assume such defense, and the fees and expenses of one counsel and one local counsel employed its attorneys will be covered by the indemnified party indemnity provided for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice this Article IX upon determination of the Third Party Claim as provided above)Indemnifying Party’s indemnity obligation. If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, provided that a material failure to provide such cooperation by the Indemnified Party shall bar the Indemnified Party from any remedy with respect to such Third Party Claim. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (unless the sole relief granted is equitable relief for which consent shall the Indemnifying Party would have no liability and to which the Indemnifying Party would not be unreasonably withheld or delayed)subject. If The Indemnifying Party shall not, without the indemnifying party assumes prior written consent of the defense of Indemnified Party, consent to a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of, or the entry of a any judgment arising from, any Third Party Claim that Claim, unless such settlement, compromise or discharge does not involve any finding or admission or any violation of Law or admission of any wrongdoing by the indemnifying party may recommend Indemnified Party and that by its terms obligates involves solely the indemnifying party payment of money and the Indemnifying Party shall (i) pay or cause to pay be paid all amounts arising out of such settlement or judgment concurrently with the full amount effectiveness of such settlement, (ii) not encumber any of the assets of any Indemnified Party or agree to any restriction or condition that would apply to or adversely affect any Indemnified Party and (iii) obtain, as a condition of any settlement or other resolution, a complete and unconditional release of each Indemnified Party from any and all liability in connection with respect of such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 2 contracts
Sources: Share Exchange Agreement, Share Exchange Agreement (Mexican Economic Development Inc)
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof andand (unless the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its willingness and financial capacity to defend such Third-Party Claim), if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party by providing the Indemnified Party with written notice of such election within thirty (30) days after its receipt of the applicable Third-Party Claim Notice; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Third-Party ClaimClaim in accordance with this Section 10.06(b), the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof (which, for the sake of clarity, will not be Losses indemnifiable under this Article X). Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third-Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third-Party Claim in accordance with this Section 10.06(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable (subject to Section 10.06 below) for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified partyIndemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party chooses to defend or prosecute a Third-Party Claim, which are governed by all the second preceding sentence Indemnified Parties shall cooperate in this Section 10.6(b))the defense or prosecution thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis at such times and places as may be reasonably necessary to provide defend against such Third-Party Claim for the purpose of providing additional information and information, explanation of any material provided hereunderor testimony in connection with such Third-Party Claim. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent agree to the entry of any judgment for, Judgment or enter into any settlement or compromise with respect to such Third Third-Party Claim without the indemnifying party’s prior written consent of the Indemnified Party (which consent shall not to be unreasonably withheld withheld, delayed or delayed). If the indemnifying party assumes the defense conditioned) unless such settlement: (xx) does not involve any finding or admission of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge violation of a Third Party Claim Law; (yy) does not involve any relief other than monetary damages that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the are satisfied in full amount out of the liability Escrowed Consideration in the Escrow Account (in accordance with Section 10.08 below); and (zz) completely, finally and unconditionally releases the Indemnified Party in connection with such Third Third-Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Indemnified Party in defending such Third Third-Party Claim) if if: (yyy) the Third Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Indemnified Party could be entitled to assume indemnification under this Agreement; or (zzz) the Third-Party Claim is a criminal Proceeding, or relates to such a Proceeding, or the underlying facts or circumstances of which would reasonably be expected to give rise to such a Proceeding. If the Indemnified Party assumes the defense of a Third-Party Claim, the Indemnified Party shall not agree to the entry of any Third judgment or enter into any settlement or compromise with respect to such Third-Party Claim until it executes a joint defense agreement with without the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion prior written consent of the Third Indemnifying Party Claim can (not to be so separated from that for money damagesunreasonably withheld, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesdelayed or conditioned).
Appears in 2 contracts
Sources: Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)
Assumption. If Except as provided in Section 8.02(c) of this TMA, if a Third Party Tax Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with professional advisors and counsel selected by the indemnifying party; provided, however, that such professional advisors or counsel is are not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Tax Claim, the indemnifying party shall not be liable to the indemnified party for any legal fees or expenses relating to such professional advisors or counsel subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ professional advisors and counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the professional advisors and counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel professional advisors and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Tax Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Tax Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, cooperating and assisting in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters. Whether or not the indemnifying party assumes the defense of a Third Party Tax Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Tax Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Tax Claim, the indemnified party shall agree to any settlement, compromise compromise, or discharge of a Third Party Tax Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Tax Claim; provided that if such settlement, which releases compromise or discharge imposes conditions, costs or other detriments (in addition to the indemnified party completely liability in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Tax Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for upon the indemnified party, there is a conflict of interest between the such indemnified party and the indemnifying partymay use its reasonable judgment in determining whether to so agree, then the indemnifying party shall such agreement not to be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesunreasonably withheld.
Appears in 2 contracts
Sources: Tax Matters Agreement (Marathon Oil Corp), Tax Matters Agreement (Marathon Oil Corp)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, and if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Stock Purchase Agreement (Brinks Co)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, with counsel selected thereof by notifying the indemnifying indemnified party in writing to such effect within 30 days of receipt of the indemnified party's notice of such Third Party Claim; provided, however, that such the indemnified party shall have the right to employ counsel is not reasonably objected to by represent it if, in the indemnified party. Should 's reasonable judgment, it is advisable to, in light of the separate interests of the indemnified party, to be represented by separate counsel (including, as applicable, local counsel), and in that event the reasonable fees and expenses of such separate counsel shall be paid by the indemnifying party so elect and; provided, further, that the indemnifying party shall not have the right to assume the defense of such Third Parry Claim unless (i) the indemnifying party acknowledges fully the rights of the Indemnified Party (and does not contest, as a whole or in part) the indemnified party's indemnification rights for the Third Party Claim, (ii) the counsel selected by the indemnifying party is reasonably satisfactory to the indemnified party, (iii) the indemnified party is kept informed of all material developments and is furnished copies of all material papers filed or sent to or from the opposing party or parties and (iv) the indemnifying party prosecutes the defense of such Third Party Claim with commercially reasonable diligence in a manner which does not materially prejudice the defense of such Third Party Claim. If the indemnifying party does not give timely notice in accordance with the preceding sentence, the indemnifying party shall be deemed to have given notice that it does not be wish to control the handling of such Third Party Claim. In the event the indemnifying party elects (by notice in writing within such 30 day period) to assume the defense of or otherwise control the handling of any such Third Party Claim for which indemnity is sought, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any and all reasonable professional fees (including attorneys' fees, accountants, consultants and engineering fees) and investigation expenses incurred by the indemnified party prior to such election, notwithstanding the fact that the indemnifying party may not have been so liable to the indemnified party for any legal expenses subsequently incurred by had the indemnified indemnifying party in connection with not elected to assume the defense thereofof or to otherwise control the handling of such Third Party Claim. If the indemnifying party assumes such defensedefense in accordance with this Section 8.3(b), the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, to assume, conduct and control the settlement or defense thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control and conduct such defensedefense and settlement. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party with respect to any Third Party Claim for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claimconsent, and the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend that does not impose any obligations or conditions on the indemnified party (other than obligations or conditions that are immaterial) and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases thereby releasing the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyClaim. Notwithstanding the foregoing, the indemnified party shall have the right to settle, compromise or discharge any Third Party Claim; provided, that in such event it shall waive any right to indemnification under Section 8.1 or 8.2 with respect thereto. If the indemnifying party shall does not be entitled to assume the defense of a Third Party Claim, the indemnified party shall have the right to conduct and control the defense and settlement in such manner as it deems appropriate, including settling or compromising any such Third Party Claim (and shall be liable for after giving prior written notice of the reasonable fees and expenses of one counsel and one local counsel incurred by same to the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified indemnifying party and obtaining the prior written consent of the indemnifying party, then the indemnifying party which consent shall not be entitled to assume the defense unreasonably withheld, conditioned or delayed) on such terms of any Third Party Claim until it executes a joint defense agreement with the indemnified party may reasonably deem appropriate, and in form reasonably satisfactory to both partiesconnection therewith shall have indemnification rights as set forth in this Agreement. If such equitable relief The indemnification required by Section 8.1 or other relief portion 8.2 shall be made by periodic payments of the amount thereof during the course of the investigation or defense as and when bills are received or loss, liability, claim, damage or expense is incurred. All claims under Section 8.1 or 8.2 other than Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled governed by Section 8.5(c). All Claims related to assume the defense of the portion relating to money damagesTaxes shall be governed by Section 5.7(c).
Appears in 1 contract
Sources: Stock Purchase Agreement
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that Indemnifying Party as long as it conducts such counsel is not reasonably objected to by the indemnified partydefense actively and diligently. Should the indemnifying party Indemnifying Party so elect to assume assume, and while it so assumes, the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyIndemnifying Party), at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided aboveClaim). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party Indemnifying Party may recommend and that by its terms obligates the indemnifying party Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyIndemnified Party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party Indemnified Party that the indemnified party Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim Claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Stock Purchase Agreement (Allied Defense Group Inc)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Arch Chemicals Inc)
Assumption. If a Third Party Claim is made against an indemnified partya Parent Indemnitee, the indemnifying party Securityholder Representative (on behalf of the Securityholders) shall be entitled to participate, at its own expense, participate in the defense thereof andand (unless the Securityholder Representative is also a party to such Third Party Claim and Parent Indemnitee determines in good faith that joint representation would be inappropriate), if it Securityholder Representative so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedSecurityholder Representative, however, that such which counsel is not must be reasonably objected satisfactory to by the indemnified partyParent. Should the indemnifying party so elect to assume If Securityholder Representative assumes the defense of a Third Party ClaimClaim in accordance with this Section 8.03(b), it shall be conclusively established for purposes hereof that such Third Party Claim is within the indemnifying party scope of and subject to indemnification hereunder. Any such participation or assumption shall not be liable to the indemnified constitute a waiver by any party for of any legal expenses subsequently incurred by the indemnified party attorney-client privilege in connection with the defense thereofsuch Third Party Claim. If the indemnifying party Securityholder Representative assumes such defensethe defense of a Third Party Claim in accordance with this Section 8.03(b), the indemnified party applicable Parent Indemnitee shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partySecurityholder Representative, it being understood that the indemnifying party Securityholder Representative shall control such defense. The indemnifying party ; provided, however, that Losses for which the Parent Indemnitee may recover shall be liable for the include fees and expenses of one separate counsel and one local if the employment of separate counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed been authorized in writing by Securityholder Representative in connection with defending such claim or the Parent Indemnitee shall have been advised by counsel that (A) there may be defenses available to give notice Parent Indemnitee that are different to or additional to those available to Securityholder Representative or (B) there is a conflict of the Third Party Claim as provided above)interest that could make it inappropriate under applicable standards of professional conduct to have common counsel. If the indemnifying party Securityholder Representative chooses to defend or prosecute a Third Party Claim, all the indemnified parties Parent Indemnitees shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partySecurityholder Representative’s request) the provision to the indemnifying party, Securityholder Representative of records and information that are reasonably relevant to such Third Party Claim, and making employees available on at such times and places as may be reasonably necessary to defend against such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim. If notice is given to the Securityholder Representative of a mutually convenient basis Third Party Claim in accordance with this Section 8.03(b) and the Securityholder Representative does not, within 10 Business Days after such notice is given, give notice to provide additional information and explanation Parent of its election to assume the defense of such Third Party Claim, the Securityholder Representative will be bound by any material provided hereunderdetermination made in such Third Party Claim or any settlement, compromise or discharge effected by Parent Indemnitee. Whether or not If the indemnifying party Securityholder Representative assumes the defense of a Third Party Claim, the indemnified party Securityholder Representative shall defend such Third Party Claim vigorously and diligently to final conclusion or settlement of such Third Party Claim; provided, however, that Securityholder Representative shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent of Parent unless such settlement (which consent shall i) does not be unreasonably withheld involve any finding or delayed). If the indemnifying party assumes the defense admission of a Third Party Claim, the indemnified party shall agree to any settlement, compromise violation of Law or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount any violation of the liability rights of any Person and would not have any adverse effect on any other claims that may be made against Parent Indemnitee, (ii) does not involve any relief other than monetary damages that are paid in full out of the Indemnity Holdback Amount and (iii) completely, finally and unconditionally releases the Parent Indemnitees in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party Securityholder Representative shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Parent Indemnitee in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from for which any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Parent Indemnitee would be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of indemnification under this Agreement, (ii) the Third Party Claim can is a criminal, civil or administrative Action, or relates to such an Action, or the underlying facts or circumstances of which could reasonably be so separated from expected to give rise to such an Action, (iii) involves a counterparty that for money damagesis a customer, the indemnifying party shall be entitled to assume the defense supplier or other material partner of the portion relating Group Companies or that could reasonably be expected to money damagesresult in a material adverse impact on any Parent Indemnitee’s relationship with one or more of such customers, suppliers or other material partners or (iv) has a reasonable risk of resulting in a Loss (when aggregated with other realized or potential Losses which relate to indemnification claims made pursuant to this Agreement) that would exceed the remaining amount of the Indemnity Holdback Amount.
Appears in 1 contract
Sources: Merger Agreement (Porch Group, Inc.)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof andand (unless (i) the Indemnifying Party is also a party to such Third Party Claim and the joint representation would create a conflict of interest under applicable standards of professional conduct or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its willingness and financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim), if it the Indemnifying Party so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedIndemnifying Party, howeverwhich counsel must be reasonably satisfactory to the Indemnified Party, that by giving written notice thereof to the Indemnified Party within ten (10) Business Days after Indemnified Party gives notice to the Indemnifying Party of such counsel is not reasonably objected to by Third Party Claim. If the indemnified party. Should the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 6.05(b), (i) the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof and (ii) it shall be conclusively established for purposes hereof that such Third Party Claim is within the scope of and subject to indemnification hereunder. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 6.05(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense; provided, however, that the Indemnifying Party shall pay the fees and expenses of separate counsel if the Indemnified Party shall have been advised by counsel that (A) there may be defenses available to the Indemnified Party that are different to or additional to those available to the Indemnifying Party or (B) there is a conflict of interest that would reasonably be expected to make it inappropriate under applicable standards of professional conduct to have common counsel. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not timely assumed the defense thereof (other than during any period in which the indemnified party shall have failed pursuant to give notice of the Third Party Claim as provided abovethis Section 6.05(b). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Party shall cooperate in the defense or prosecution thereof thereof. If notice is given to the Indemnifying Party of a Third Party Claim in accordance with this Section 6.05(b) and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor Indemnifying Party does not, within ten (other than the fees and expenses of counsel employed by the indemnified party10) Business Days after such notice is given, which are governed by the second preceding sentence give notice in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision writing to the indemnifying party, Indemnified Party of records and information that are reasonably relevant its election to assume the defense of such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of the Indemnifying Party will be bound by any material provided hereunderdetermination made in such Third Party Claim or any settlement, compromise or discharge effected by the Indemnified Party. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall defend such Third Party Claim vigorously and diligently to final conclusion or settlement of such Third Party Claim; provided, however, that the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability Indemnified Party unless such settlement (i) does not involve any finding or admission of any violation of Law or any violation of the rights of any Person and would not have any adverse effect on any other claims that may be made against any Person, (ii) does not involve any relief other than monetary damages that are paid in connection with such Third full by the Indemnifying Party Claimand (iii) completely, which finally and unconditionally releases the indemnified party completely Indemnified Party in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyIndemnified Party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Indemnified Party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Indemnified Party would be entitled to assume indemnification under this Agreement or may otherwise adversely affect the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of Indemnified Party, (ii) the Third Party Claim can is a criminal or administrative proceeding, or relates to such a proceeding, or the underlying facts or circumstances of which would reasonably be so separated from that for money damagesexpected to give rise to such a proceeding or (iii) the Third Party Claim involves a material customer, supplier, vendor or other material business relation of an Indemnified Party, in which cases, the indemnifying party Indemnified Party shall not settle any such Third Party Claim in connection with which the Indemnified Party would be entitled to assume indemnification under this Agreement without the defense consent of the portion relating Indemnifying Party, not to money damagesbe unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Riot Blockchain, Inc.)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so choosessubject to the limitations set forth in Section 9.04(c), to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that (i) such counsel is not reasonably objected to by the indemnified partyIndemnified Party, (ii) prior to assuming control of such defense, the indemnifying party must furnish the Indemnified Party with evidence that the indemnifying party has adequate resources to defend the Third Party Claim and fulfill its indemnity obligations, if any, hereunder. In the event that the indemnifying party assumes the defense of a Third-Party Claim in accordance with this Section 9.04, the indemnifying party shall have a sixty (60) day period (the “Discovery Period”) following receipt by the indemnifying party of notice of such Third Party Claim during which the indemnifying party shall be entitled to reasonable discovery with respect to the indemnifiable nature of the claims. The indemnifying party and the Indemnified Party shall reasonably cooperate with each other with respect to such discovery. If the indemnifying party does not provide written notice to the Indemnified Party by the end of the Discovery Period that it no longer continues to assume the defense of the Third-Party Claim, the claims made in that Third-Party Claim will be conclusively established for purposes of this Agreement as within the scope of and subject to indemnification hereunder. Should the indemnifying party so elect to assume and continue the defense of a Third Party ClaimClaim in accordance with and subject to the limitations of this Section 9.04, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof following the 50 CLI-2060753v12 Discovery Period. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The defense in accordance with and subject to the limitations of this Section 9.04; provided, however that the indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party (A) for any period during which the indemnifying party has not assumed the defense thereof or (other than during any period in which B) if the indemnified party Indemnified Party shall have failed to give notice reasonably conclude, after consultation with outside legal counsel, that there is a conflict of the Third Party Claim as provided above). If interest between the indemnifying party chooses and the Indemnified Party in the conduct of the defense of such claim. Each party shall reasonably cooperate, and shall cause its affiliates to defend or prosecute a Third Party Claim, all the indemnified parties shall reasonably cooperate in the defense or prosecution thereof of any Third Party Claim and the indemnifying party shall reimburse the indemnified party for its retain and provide upon reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of request records and information that are reasonably relevant to such Third Party Claim, Claim and making make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Party Claim in accordance with and subject to the limitations of this Section 9.04, the indemnifying party shall obtain the prior written consent of the Indemnified Party (such consent shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim; provided, however that consent of the Indemnified Party shall not be required for any such settlement if (X) such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Third Party Claim and does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party, (Y) the sole relief provided is monetary damages that are paid in full by the indemnifying party and (Z) such settlement does not permit any order, injunction or other equitable relief to be entered, directly or indirectly, against the Indemnified Party. If the indemnifying party does not assume the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any be entitled to indemnification hereunder with respect thereto if it has admitted liability with respect to, or settlesettled, compromise compromised or discharge or consent to the entry of any judgment fordischarged, such Third Party Claim without the indemnifying party’s prior written consent (which such consent shall not to be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Freeport McMoran Copper & Gold Inc)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected satisfactory to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense defence thereof and, if it so chooses, to assume the defense thereof, at its own expense, defence thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense defence of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense defence thereof. If the indemnifying party assumes such defensedefence, the indemnified party shall have the right to participate in the defense defence thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defensedefence. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)defence thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense defence or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense defence of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense defence of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Agreement for Sale and Assignment of Rights (NPS Pharmaceuticals Inc)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereofand, at its own expensesubject to the seventh sentence of this Section 8.04(b), settlement thereof with counsel selected by the indemnifying partyparty and shall have the right, but not the obligation, to assert any cross-claim or counterclaim in connection therewith; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, (A) the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party, and (B) the indemnified party shall not enter into any settlement, compromise or discharge of a Third Party Claim without the prior written consent of the indemnifying party (which shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between damages or (ii) the indemnified party and reasonably believes itself to be exposed, in the event that such Third Party Claim is not resolved in the indemnified party or indemnifying party’s favor, to Losses in excess of amounts reasonably expected to be received from the indemnifying party, then . In the indemnifying party shall not be entitled to assume the defense case of any Third Party Claim until it executes a joint defense agreement with referred to in clause (i) of the indemnified party in form reasonably satisfactory to both parties. If immediately preceding sentence, if such equitable relief or other relief portion of the such Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion of such Third Party Claim relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying Indemnifying Party shall (unless (i) the Indemnifying Party is also a party shall to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim) be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 8.05(b), (i) the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof and (ii) it shall be conclusively established for purposes hereof that such Third Party Claim is within the scope of and subject to indemnification hereunder. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 8.05(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on at such times and places as may be reasonably necessary to defend against such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim. If notice is given to an Indemnifying Party of a mutually convenient basis Third Party Claim in accordance with this Section 8.05(b) and the Indemnifying Party does not, within 10 Business Days after such notice is given, give notice to provide additional information and explanation the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will be bound by any material provided hereunderdetermination made in such Third Party Claim or any settlement, compromise or discharge effected by the Indemnified Party. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall defend such Third Party Claim vigorously and diligently to final conclusion or settlement of such Third Party Claim; provided that the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability Indemnified Party unless such settlement (i) does not involve any finding or admission of any violation of Applicable Law or any violation of the rights of any Person and would not have any adverse effect on any other claims that may be made against the Indemnified Party, (ii) does not involve any relief other than monetary damages that are paid in connection with such Third full by the Indemnifying Party Claimand (iii) completely, which finally and unconditionally releases the indemnified party completely Indemnified Party in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyIndemnified Party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Indemnified Party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party Indemnified Party would be entitled to indemnification under this Agreement that the indemnified party Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel monetary damages for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not which it would be entitled to assume indemnification under this Agreement or may otherwise adversely affect the defense of any Indemnified Party, or (ii) the Third Party Claim until it executes is a joint defense agreement with criminal, civil or administrative Proceeding or investigation brought by a Governmental Entity or stock exchange, or relates to such a Proceeding or investigation, or the indemnified party in form underlying facts or circumstances of which would reasonably satisfactory be expected to both partiesgive rise to such a Proceeding or investigation. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damagesmonetary damages for which the Indemnified Party would be entitled to indemnification under this Agreement, the indemnifying party Indemnifying Party shall be entitled to assume the defense of the portion relating to money damagesmonetary damages for which the Indemnified Party would be entitled to indemnification under this Agreement.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such in each case at its own expense. The indemnifying party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the fees and expenses of counsel is not reasonably objected to retained by the indemnified partyIndemnified Party if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (ii) the indemnifying party has failed or is failing to prosecute or defend the Third Party Claim. Should the indemnifying party be so entitled to and so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The foregoing notwithstanding, the indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above)) or if the Indemnified Party has been advised by its outside counsel that there exists a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnified Party and the indemnifying party. If the indemnifying party is entitled to and chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof thereof; if the Indemnified Parties are entitled to and choose to so defend or prosecute, the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence cooperate in this Section 10.6(b))such defense or prosecution. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making directors, officers, agents, advisors and employees reasonably available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether With respect to any Third Party Claim, neither the indemnifying party (if it does not assume the defense of such Third Party Claim) nor the Indemnified Party (whether or not the indemnifying party assumes the defense of a such Third Party Claim), without the indemnified party shall prior written consent of the other party, such consent not admit any liability with respect toto be unreasonably withheld, delayed or conditioned, may settle, compromise or discharge any Third-Party Claim or permit a default or consent to the entry of any judgment for, with respect to such Third Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)Claim. If the indemnifying party assumes the defense of a Third Party Claim, it shall not, without the indemnified party shall agree prior written consent of the Indemnified Party, such consent not to any settlementbe unreasonably withheld, delayed or conditioned, settle, compromise or discharge of a Third any Third-Party Claim that or permit a default or consent to entry of any judgment with respect to such Third-Party Claim, unless (i) the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay pays the full amount of the monetary liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with (ii) such Third Party Claim and that would settlement or compromise does not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense contain any admission of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred liability or wrongdoing by the indemnified party in defending Indemnified Party and (iii) such Third Party Claim) if the Third Party Claim seeks an ordersettlement or compromise does not impose any sanctions, injunction restrictions or other equitable relief or relief for obligations (other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and monetary liabilities paid by the indemnifying party, then )) on the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Convergys Corp)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof at its own cost and expense and (unless the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party provides the Indemnifying Party with written advice of counsel to the Indemnified Party to the effect that there may be legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party and, that, in each case, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such Indemnified Party, in which case the Indemnifying Party shall reimburse the Indemnified Parties for the costs and expenses of one outside counsel to represent all Indemnified Parties in such matter), if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should Notwithstanding the indemnifying party so elect foregoing, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the reasonable fees, costs and expenses of one outside counsel retained by all Indemnified Parties to the extent the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation, or investigation against the Indemnified Party. The assumption of the defense of any Third Party Claim shall be made by notice to the Indemnified Party not later than 20 Business Days following delivery of the applicable notice of claim to the Indemnifying Party, and the Indemnified Party may take such actions necessary or appropriate to defend such Third Party Claim until it receives notice from the Indemnifying Party, but without in any way waiving or otherwise affecting the Indemnified Party’s rights to indemnification pursuant to this Agreement. The Indemnifying Party shall be liable for the reasonable fees, costs and expenses of one outside counsel employed by all Indemnified Parties for any period during which the Indemnifying Party has not assumed the defense of a Third Party Claim for which the Indemnified Party is entitled to indemnification hereunder. If the Indemnifying Party assumes the defense of a Third Party Claim in accordance with this Section 8.06(b), the Indemnifying Party shall not, so long as it diligently conducts the defense of the applicable Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof incurred after the date on which the Indemnified Party received notice thereof. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 8.06(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and at the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))Indemnifying Party’s expense. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying partyIndemnifying Party, during normal business hours, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis during normal business hours as may be reasonably necessary to provide defend against such Third Party Claim for the purpose of providing additional information and information, explanation of any material provided hereunderor testimony in connection with such Third Party Claim. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall agree to any settlement, compromise or discharge of a not settle such Third Party Claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), except that the indemnifying party may recommend and that by its terms obligates Indemnifying Party shall have the indemnifying party right to pay the full amount of the liability in connection with settle such Third Party ClaimClaim without the consent of the Indemnified Party if (i) such settlement (A) does not involve any finding or admission of any violation of applicable Law, which releases and does not include a statement or admission of fault, culpability or failure to act, in each case, by or on the indemnified party completely part of any Indemnified Party, (B) does not involve any relief against the Indemnified Party other than monetary damages and (C) provides a customary, complete and unconditional release of the Indemnified Party from any and all liability in connection with such Third Party Claim and that would not otherwise adversely affect (ii) the indemnified party. Notwithstanding Indemnifying Party pays or causes to be paid all amounts arising out of such settlement or judgment concurrently with the foregoing, the indemnifying party shall not be entitled to assume the defense effectiveness of any Third Party Claim such settlement or judgment (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesas contemplated by Section 8.03).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (American International Group Inc)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof andthereof. Except for Third Party Claims concerning a product recall, if it so choosesthe defense of which shall be controlled solely by Purchasers, the indemnifying party may choose to assume the defense thereof, at its own expense, of the Third Party Claim with counsel representatives selected by the indemnifying party; provided, however, that such counsel is representatives are not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel representatives (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel representatives employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel representatives employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.prosecution
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedIndemnifying Party, however, that so long as such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party Indemnifying Party so elect to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). Notwithstanding any provision herein to the contrary, the Indemnifying Party will not be entitled to assume control of the defense of such Third Party Claim, and will pay the reasonable fees and expenses of counsel employed by the Indemnified Party, if (i) the Indemnified Party reasonably believes that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in connection with such Third Party Claim and (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party, after being requested in writing by the Indemnified Party, of the Indemnifying Party’s financial capacity and/or intent to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim, if required to do so by the terms of this Agreement. If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the indemnified parties Indemnified Parties shall reasonably cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying partyIndemnifying Party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, the cost of which shall constitute Losses. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld withheld) except where such settlement, compromise or delayed)discharge (a) involves only the payment of money damages, (b) does not impose an injunction or other equitable relief upon the Indemnifying Party, (c) does not contain any term that in any manner affects, restrains or interferes with the business of the Indemnifying Party, (d) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnifying Party and (e) includes a complete release of the Indemnifying Party from all liability in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a such Third Party Claim that the indemnifying party may recommend Indemnifying Party recommends and that by its terms obligates the indemnifying party Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Third-Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that who shall consent to such counsel is not reasonably objected to by the indemnified partyunless it has reasonable objections thereto. Should the indemnifying party so elect to assume the defense of a Third Third-Party ClaimClaim and the indemnified party consents to the chosen counsel, then:
(i) the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, ;
(ii) the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably to be unreasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; and
(iii) all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information that are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Third-Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Third-Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If Except as provided in Section 8.02(c) and (e) of this TMA, if a Third Party Tax Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with professional advisors and counsel selected by the indemnifying party; provided, however, that such professional advisors or counsel is are not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Tax Claim, the indemnifying party shall not be liable to the indemnified party for any legal fees or expenses relating to such professional advisors or counsel subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ professional advisors and counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the professional advisors and counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel professional advisors and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Tax Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Tax Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, cooperating and assisting in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters. Whether or not the indemnifying party assumes the defense of a Third Party Tax Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Tax Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Tax Claim, the indemnified party shall agree to any settlement, compromise compromise, or discharge of a Third Party Tax Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Tax Claim; provided that if such settlement, which releases compromise or discharge imposes conditions, costs or other detriments (in addition to the indemnified party completely liability in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Tax Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for upon the indemnified party, there is a conflict of interest between the such indemnified party and the indemnifying partymay use its reasonable judgment in determining whether to so agree, then the indemnifying party shall such agreement not to be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesunreasonably withheld.
Appears in 1 contract
Sources: Tax Matters Agreement (Ashland Inc)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party Indemnifying Party so elect to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party in the defense of such Third Party Claim for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Indemnifying Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability Liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, (i) no compromise or settlement of such claims may be effected by the indemnified party Indemnifying Party without the Indemnified Party’s consent (which shall agree not be unreasonably withheld or delayed) unless (A) there is no finding or admission of any violation by any Indemnified Party of any Legal Requirement or any violation by any Indemnified Party of the rights of any Person, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; (ii) the Indemnifying Party will have no Liability with respect to any settlement, compromise or discharge settlement of such Third Party Claim effected without the Indemnifying Party’s consent (which shall not be unreasonably withheld or delayed); and (iii) the Indemnified Party will cooperate as the Indemnifying Party may reasonably request in investigating, defending and (subject to clause (i)) settling such action or proceeding. To the extent the Indemnifying Party shall control or participate in the defense, settlement or compromise of a Third Party Claim Claim, the Indemnified Party shall reasonably cooperate with the Indemnifying Party by providing records and other information on a timely basis that the indemnifying party may recommend and that by its terms obligates the indemnifying party are reasonably relevant to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, thereof at its own expense, sole cost with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party; provided, further, that the Indemnified Party shall be entitled to assume and control the defense of a Third Party Claim if the Indemnified Party has one or more defenses or counterclaims with respect to that Third Party Claim that are inconsistent with one or more of defenses or counterclaims that may be available to the indemnifying party with respect to that Third Party Claim. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Party shall reasonably cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, provided that the indemnifying party shall reimburse the Indemnified Party for the compensation (including salary and benefits) and reasonable out-of-pocket expenses incurred by any employee of an Indemnified Party who may provide assistance to the indemnifying party pursuant to this Section 10.05(b) and for any additional costs incurred by the Indemnified Party to enable such employee to provide litigation support in lieu of their duties for the Indemnified Party. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge discharge, or consent offer to the entry of any judgment forsettle, compromise or discharge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not may be unreasonably withheld or delayedwithheld). If Except with the prior written consent of the Indemnified Party, no indemnifying party that assumes the defense of a Third Party Claim, Claim shall consent to the indemnified party shall agree to entry of any judgment or enter into any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates (i) includes injunctive or other non-monetary relief that adversely affects the indemnifying party to pay Indemnified Party in any material respect, (ii) does not release the full amount of the liability Indemnified Party completely in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that or (iii) would not otherwise adversely affect the indemnified partyIndemnified Party in any material respect. Notwithstanding In the foregoing, the indemnifying party shall not be entitled to assume the defense of any event a Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third is asserted against an Indemnified Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damagesBankruptcy Court, the indemnifying party shall be entitled to assume file a motion to transfer such Third Party Claim to the defense of the portion relating to money damagesBankruptcy Court.
Appears in 1 contract
Sources: Asset Purchase Agreement (Nucentrix Broadband Networks Inc)
Assumption. If a Third Party Claim is made against an indemnified partyany of the Indemnified Parties, the indemnifying party Indemnifying Party shall (upon notice to the Indemnified Parties) be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Parties; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Parties; provided further that the Indemnifying Parties shall not be entitled to assume the defense of a Third Party Claim unless and until the Indemnifying Parties have agreed in writing that it is obligated to indemnify the Indemnified Parties in full for such Third Party Claim. Should Except as provided below, if the indemnifying party so Indemnifying Parties elect to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Parties shall not be liable to the indemnified party Indemnified Parties for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Parties in connection with the defense thereof. If the indemnifying party assumes Indemnifying Parties assume such defense, the indemnified party Indemnified Parties shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Parties, it being understood that the indemnifying party Indemnifying Parties shall control such defense. The indemnifying party ; provided that the Indemnifying Party shall be liable for bear the reasonable fees and expenses of one such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Indemnified Parties and one local any of the Indemnifying Parties, and representation of such Indemnifying Parties and any such Indemnified Parties, be inappropriate due to a conflict of interest or (ii) if the Indemnifying Parties shall not have employed counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which counsel that is reasonably objected to by the indemnified party shall have failed to give Indemnified Parties) within a reasonable time after the Indemnified Parties has given notice of the institution of a Third Party Claim as provided abovein compliance with Section 13.4(a). If the indemnifying party Indemnifying Parties elects not to defend such Third Party Claims and the Indemnified Parties litigates or otherwise contests or settles such Third Party Claim, then the Indemnifying Parties shall promptly reimburse the Indemnified Parties for all damages incurred by the Indemnified Parties, including the amount of any judgment or settlement and reasonable attorney's fees. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s Indemnifying Party's request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Parties shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s Indemnifying Parties' prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes Indemnifying Parties assume the defense of a Third Party Claim, the indemnified party Indemnified Parties shall not be obligated to agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party Indemnifying Parties may recommend and that recommend, unless by its terms such settlement, compromise or discharge obligates the indemnifying party Indemnifying Parties to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Parties completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the indemnified partyIndemnified Parties. Notwithstanding Without limiting the foregoing, in connection with Third Party Claims for which the indemnifying party shall not be entitled Indemnifying Parties have indemnified the Acquiror pursuant to Section 13.1(a)(v), the Indemnifying Parties may elect to have counsel for the Acquiror assume the defense of such Third Party Claims, in which event, the actions and strategy of the Indemnified Parties shall be subject to the reasonable approval of the Indemnifying Parties, provided, however, that this sentence shall not be deemed a waiver of the Indemnifying Parties to consent to any settlement with respect to any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled pursuant to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesthis Section 13.4.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party and provided further that the indemnifying party shall keep the Indemnified Party reasonably informed on all aspects of such defense. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees reasonably available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which unconditionally releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyClaim. Notwithstanding any provision of this Section 9.04(b) to the foregoingcontrary, the indemnifying party preceding sentence shall not be entitled apply to assume the defense settlement, compromise or discharge of any Third Party Claim relating to Taxes (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claimincluding, without limitation, any Retained Tax Liability) if (i) the Third Party Claim seeks an orderat issue could reasonably be expected to result in any additional Tax liability in excess of $500,000 per year for the Purchaser and its Affiliates in connection with the Business, injunction or other equitable relief or relief for other than money damages against and (ii) the indemnified party Purchaser agrees in writing, in form and substance reasonably acceptable to the Sellers, to indemnify the Sellers, from the time that the indemnified party reasonably determinesSellers notify the Purchaser in writing that they have a preliminary agreement to settle, after conferring compromise or discharge such Retained Tax Liability (such written notice to include the amount at which such Retained Tax Liability is proposed to be settled, compromised or discharged), for their additional defense costs associated with its outside counselsuch Retained Tax Liability and any increase to the amount at which the Sellers proposed to settle, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If compromise or discharge such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesRetained Tax Liability.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full 72 67 amount of the liability in connection with such Third Party Claim, and which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, and if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party and reasonably acceptable to the Indemnified Party; provided, howeverthat the Indemnifying Party shall not be entitled to assume the defense thereof if (i) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its willingness to defend such Third Party Claim, that (ii) the Third Party Claim is a criminal Proceeding, or relates to such counsel is not reasonably objected to a Proceeding, or (iii) such Third Party Claim may be covered by the indemnified partyRepresentations and Warranties Insurance Policy or any amended or replacement policy even if the Losses are not expected to exceed the retention under such Representations and Warranties Insurance Policy. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 11.4(b), the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof, provided that the Indemnified Party shall have the right to employ one (1) counsel to represent such Indemnified Party (plus one (1) local counsel in each applicable jurisdiction) if the Indemnified Party and the Indemnifying Party are both named parties to the Proceedings and the Indemnified Party determines in good faith and upon advice of outside legal counsel that joint representation would be inappropriate due to actual or potential differing interests between them, and in that event the reasonable fees and expenses of such separate counsel for the Indemnified Party shall be paid by the Indemnifying Party. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 11.4(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, then the Indemnifying Party and all of the indemnified parties Indemnified Parties shall reasonably cooperate in the defense or prosecution thereof thereof. If notice is given to an Indemnifying Party of a Third Party Claim in accordance with this Section 11.4(b) and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor Indemnifying Party does not, within twenty (other than the fees and expenses of counsel employed by the indemnified party20) Business Days after such notice is given, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision give notice to the indemnifying party, Indemnified Party of records and information that are reasonably relevant its election to assume the defense of such Third Party ClaimClaim in accordance with this Section 11.4(b), and making employees available on a mutually convenient basis to provide additional information and explanation of the Indemnifying Party will be bound by any material provided hereunderdetermination made in such Third Party Claim or any settlement, compromise or discharge effected by the Indemnified Party. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability Indemnified Party unless such settlement (i) does not involve any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) does not involve any relief other than monetary damages that are paid in full by the Indemnifying Party (iii) does not require the consent of the insurance policy provider pursuant to the Representations and Warranties Insurance Policy and (iv) completely, finally and unconditionally releases the Indemnified Party in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled (i) to participate, at its own expense, participate in the defense thereof (at its expense) and, (ii) if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedparty so long as (A) the indemnifying party gives written notice to the indemnified party within 30 days after the indemnified party has given notice of the Third Party Claim under Section 8.06(a) stating that the indemnifying party will, howeverand thereby covenants to, indemnify, defend and hold harmless the indemnified party from and against the entirety of any and all indemnifiable Losses hereunder the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the extent that they are indemnifiable pursuant to the terms and conditions of this Article VIII, (B) the indemnifying party provides the indemnified party with evidence reasonably acceptable to the indemnified party that the indemnifying party will have adequate financial resources to defend against the Third Party Claim and acknowledges its obligations to indemnify for any and all Losses related to such counsel is Third Party Claim to the extent that they are indemnifiable pursuant to the terms and conditions of this Article VIII, (C) the Third Party Claim involves only money damages and does not reasonably objected to by seek an injunction or other equitable relief against the indemnified party, (D) the indemnified party has not been advised by counsel that an actual or potential conflict of interests exists between the indemnified party and the indemnifying party in connection with the defense of the Third Party Claim, (E) the Third Party Claim does not relate to or otherwise arise in connection with any criminal or regulatory enforcement Proceeding, (F) settlement of, an adverse judgment with respect to, or conduct of the defense of the Third Party Claim by the indemnifying party is not, in the reasonable and good faith judgment of the indemnified party, likely to be adverse to the indemnified party’s reputation and (G) the indemnifying party conducts the defense of the Third Party Claim actively and diligently. Should the indemnifying party so elect in writing to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense, subject to Section 8.06(c) and Section 8.06(d). The indemnifying party shall be liable for the reasonable and documented fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed is in breach of Section 8.06(a) with respect to such Third Party Claim for failure to give notice of the Third Party Claim as provided abovein accordance with Section 8.06(a)). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all Purchaser or Seller, as the case may be, shall use reasonable best efforts to cause their respective indemnified parties shall to cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s reasonable request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim; provided, the indemnified party shall not admit any liability with respect tohowever, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent that (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, I) the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for promptly pay, reimburse or advance the reasonable fees and documented out-of-pocket fees, costs and expenses of one counsel and one local counsel (including reasonable attorneys’ fees) incurred by the indemnified party parties in defending such Third Party Claim) if connection with the Third Party Claim seeks an ordercompliance with its obligations under this sentence (the “Indemnification Cooperation Expenses”); provided, injunction or other equitable relief or relief for other than money damages against that in the indemnified party event that the indemnified party reasonably determinesparties request any such payment, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in reimbursement or advancement pursuant to the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party foregoing clause (I) and the indemnifying partyparty fails to pay, reimburse or advance the Indemnification Cooperation Expenses in accordance with this sentence, then the indemnifying party indemnified parties shall not be entitled obligated to assume take any actions under this sentence that would require them to incur any Indemnification Cooperation Expenses unless and until the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified indemnifying party in form provides evidence reasonably satisfactory to both parties. If the indemnified parties of its ability to pay, reimburse or advance the Indemnification Cooperation Expenses or otherwise pays such equitable relief amount to the indemnified parties and (II) nothing herein will require any such cooperation, efforts or access to the extent that it would (w) unreasonably interfere with the ongoing business or operations of the indemnified parties (including their relationships with customers, suppliers or other relief portion business relations), (x) conflict with the organizational documents of the Third Party Claim can indemnified parties or any Law or Judgment, (y) result in the contravention of, or that would reasonably be so separated from expected to result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which an indemnified party is party or by which it is bound; or (z) provide access to or disclose information that for money damageswould jeopardize any attorney-client or similar privilege of the indemnified parties or result in the disclosure of commercially sensitive information; provided, that in the case of the immediately foregoing clauses (x) through (z), the indemnifying party indemnified parties shall be entitled use reasonable best efforts to assume the defense arrange alternative access or disclosure of the portion relating to money damagesinformation in a manner that would not conflict with such organizational documents, Law or Judgment, contravene, violate or result in a breach of or default under such Contract or jeopardize such attorney-client or similar privilege.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party on the basis of any actual conflict of interest with such indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that which (i) by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which (ii) expressly and unconditionally releases the indemnified party completely in connection with such Third Party Claim and that would Claim, (iii) does not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of impose any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction injunctive or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between on the indemnified party and the indemnifying party, then the indemnifying party shall (iv) does not be entitled to assume the defense include any admission or finding of any Third Party Claim until it executes a joint defense agreement with violation of Applicable Law by the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesparty.
Appears in 1 contract
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnifying Party. Should the indemnifying party Indemnifying Party so elect in writing to assume the defense of a Third Third-Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the reasonable and documented fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Third-Party Claim as provided abovein accordance with Section 7.05(a)). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party Indemnifying Party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party Indemnifying Party may recommend and that by its terms obligates the indemnifying party Indemnifying Party to pay the full amount of the liability in connection with such Third Third-Party Claim, Claim and which releases the indemnified party Indemnified Party completely in connection with such Third Third-Party Claim and Claim; provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding Indemnifying Party shall not, without prior written consent of the foregoing, the indemnifying party Indemnified Party (which consent shall not be entitled unreasonably withheld, conditioned or delayed), settle, compromise or offer to assume the defense of settle or compromise any Third Third-Party Claim on a basis that would result in (and shall be liable for i) injunctive or other nonmonetary relief against the reasonable fees and expenses Indemnified Party, including the imposition of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an a consent order, injunction or other equitable relief decree that would restrict the future activity or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion conduct of the Third Indemnified Party Claim can be so separated from that for money damages, or (ii) a finding or admission of fault or misconduct by the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Equity and Asset Exchange Agreement (Martin Marietta Materials Inc)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof andand (unless (i) the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate, (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its willingness and financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim or (iii) if the Indemnified Party is seeking recovery under the R&W Policy) or a reduction in the retention thereunder, if it the Indemnifying Party so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedIndemnifying Party, however, that such which counsel is not must be reasonably objected satisfactory to by the indemnified partyIndemnified Party. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 8.06(b) (Procedures), (i) the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof and (ii) it shall be conclusively established for purposes hereof that such Third Party Claim is within the scope of and subject to indemnification hereunder. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 8.06(b) (Procedures), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense; provided, however, that the Indemnifying Party shall pay the reasonable fees and expenses of separate counsel if the employment of separate counsel shall have been authorized in writing by the Indemnifying Party in connection with defending such claim or the Indemnified Party shall have been advised by counsel that (A) there may be defenses available to the Indemnified Party that are different to or additional to those available to the Indemnifying Party or (B) there is a conflict of interest that prevents under applicable standards of professional conduct to have common counsel. The indemnifying party Indemnifying Party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on at such times and places as may be reasonably necessary to defend against such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim. If notice is given to an Indemnifying Party of a mutually convenient basis Third Party Claim in accordance with this Section 8.06(b) (Procedures) and the Indemnifying Party does not, within ten (10) Business Days after such notice is given, give notice to provide additional information and explanation the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will be bound by any material provided hereunderdetermination made in such Third Party Claim or any settlement, compromise or discharge effected by the Indemnified Party. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall defend such Third Party Claim vigorously and diligently to final conclusion or settlement of such Third Party Claim; provided, however, that the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party assumes the defense ) unless such settlement (i) does not involve any finding or admission of a Third Party Claim, the indemnified party shall agree to any settlement, compromise violation of Law or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount any violation of the liability rights of any Person and would not have any adverse effect on any other claims that may be made against the Indemnified Party, (ii) does not involve any relief other than monetary damages that are paid in connection with such Third full by the Indemnifying Party Claimand (iii) completely, which finally and unconditionally releases the indemnified party completely Indemnified Party in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyIndemnified Party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Indemnified Party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Indemnified Party would be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of indemnification under this Agreement, (ii) the Third Party Claim can be so separated from is a criminal, civil or administrative Proceeding, or relates to such a Proceeding or (iii) involves a counterparty that for money damagesis a material Insured, the indemnifying party shall be entitled to assume the defense Broker or Carrier of the portion relating to money damagesCompanies or the Company Subsidiaries at the time of such Third Party Claim.
Appears in 1 contract
Sources: Equity Purchase Agreement (Ryan Specialty Group Holdings, Inc.)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; provided that the indemnifying party shall bear the reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Symphony Parties (other than the Company) and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third Party Claim in compliance with Section 9.6(a). The indemnifying party shall be liable for the reasonable fees and expenses -71- 77 of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof, provided that such counsel is not reasonably objected to by the indemnified party shall have failed to give notice of the Third Party Claim as provided above)indemnifying party. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedprovided that the indemnifying party shall not be entitled to assume control of such defense if (i) such Third Party Claim relates to or arises in connection with any criminal action, however(ii) such Third Party Claim seeks an injunction or equitable relief against the indemnified party, that (iii) such counsel is not reasonably objected Third Party Claim relates to Taxes, or (iv) upon petition by the indemnified party, the appropriate court rules that the indemnifying party failed or is failing to vigorously prosecute or defend such Third Party Claim. Should the indemnifying party so elect in writing to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable and documented fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided abovein accordance with Section 8.18(a)). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall reasonably cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such reasonable cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder, provided, however, that the indemnified parties shall not be required to provide such access if the applicable indemnified party determines, in its reasonable judgment, that doing so could jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (it being understood that the indemnified parties shall use reasonable best efforts to provide such access in a manner that does not jeopardize any such privilege or protection). Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed) unless such settlement, compromise or discharge releases the indemnifying party completely and irrevocably and would not result in (i) injunctive or other nonmonetary relief against the indemnifying party (other than customary confidentiality obligations), including the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the indemnifying party or (ii) a finding or admission of fault, guilt or misconduct by the indemnifying party or any of its Affiliates. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely and irrevocably in connection with such Third Party Claim; provided, however, that the indemnifying party shall not, without prior written consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third Party Claim and on a basis that would not otherwise adversely affect result in (i) injunctive or other nonmonetary relief against the indemnified partyparty (other than customary confidentiality obligations), including the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the indemnified party or (ii) a finding or admission of fault, guilt or misconduct by the indemnified party or any of its Affiliates. Notwithstanding the foregoing, the indemnifying party Purchaser shall not be entitled precluded from filing any Tax Returns in respect of Escheat Liabilities that are due after the Closing Date and paying the Escheat Liabilities reported thereon to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesapplicable Governmental Entities.
Appears in 1 contract
Sources: Equity Purchase Agreement (ADT Inc.)
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, in assume the defense thereof and(unless the Indemnifying Party indicates it is not willing to defend such Third-Party Claim), if it the Indemnifying Party so chooses, to assume the defense thereof, at its own expense, with counsel selected by the indemnifying party; providedIndemnifying Party, howeverwhich counsel must be reasonably satisfactory to the Indemnified Party, that by giving written notice thereof to the Indemnified Party within 20 Business Days after the Indemnified Party provides a Claim Notice to the Indemnifying Party of such counsel is not reasonably objected to by Third-Party Claim. If the indemnified party. Should the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Third-Party ClaimClaim in accordance with this Section 9.6(b), the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third-Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third-Party Claim in accordance with this Section 9.6(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected satisfactory to by the indemnifying party)Indemnifying Party, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense. The indemnifying party shall be liable for defense and the fees settlement, arbitration, litigation and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed appellate strategy related to give notice of the Third such Third-Party Claim as provided above)subject to the other terms hereof. If the indemnifying party Indemnifying Party chooses to defend or prosecute assume the defense of a Third Third-Party Claim, all the indemnified parties Indemnified Party shall cooperate in the defense or prosecution thereof thereof. If a Claim Notice is given to the Indemnifying Party of a Third-Party Claim in accordance with this Section 9.6(b) and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified partyIndemnifying Party does not, which are governed by the second preceding sentence within 20 Business Days after such Claim Notice is given, give notice in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision writing to the indemnifying party, Indemnified Party of records and information that are reasonably relevant its election to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes assume the defense of a Third such Third-Party Claim, the indemnified party Indemnified Party shall have the right, but not admit the obligation, to assume its own defense, provided that the Indemnified Party may not settle any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Third-Party Claim without the indemnifying party’s prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld withheld, conditioned or delayed); provided, further, that any such consent provided by an Indemnifying Party shall not prejudice such Indemnifying Party’s ability to dispute whether an Indemnified Party is entitled to indemnification for such Third-Party Claim under this Article IX. If the indemnifying party Indemnifying Party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnifying Party shall agree use its commercially reasonable efforts to any settlement, compromise or discharge of a Third defend such Third-Party Claim vigorously and diligently to final conclusion or settlement of such Third-Party Claim; provided, however, that the indemnifying party may recommend and that by its terms obligates Indemnifying Party shall not settle such Third-Party Claim without the indemnifying party to pay the full amount consent of the liability Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in (i) a finding or admission of any violation of Law or the rights of any Person that would have any adverse effect on any other claims that may be made against any Person, (ii) any relief other than monetary damages paid in full by the Indemnifying Party or any of its Affiliates or (iii) no complete, final and unconditional release of the Indemnified Party in connection with such Third Third-Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim if (and shall be liable for i) the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Indemnified Party would be entitled to assume indemnification under this Agreement, (ii) the defense of any Third Third-Party Claim until it executes is a joint defense agreement with criminal or administrative proceeding, or relates to such a proceeding, or the indemnified party underlying facts or circumstances of which could reasonably be expected to give rise to such a proceeding, (iii) in form reasonably satisfactory the case of a Purchaser Indemnitee, a Purchaser Indemnitee is seeking full recovery relating to both parties. If such equitable relief or other relief portion of the Third Third-Party Claim can be so separated from that for money damages, under the indemnifying party shall be entitled to assume RWI Policy or (iv) the defense Third-Party Claim involves any Person set forth on Section 9.6(b) of the portion relating to money damagesPurchaser’s Disclosure Letter.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party Indemnifying Party so elect to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyIndemnifying Party), at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party, in any event, shall continue to be entitled to control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall be obligated to cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party Indemnifying Party may recommend and that by its terms obligates the indemnifying party Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Purchase Agreement (Globix Corp)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying ▇▇▇▇-▇▇▇▇-▇▇▇▇.8 party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction injunction, or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Comstock Inc.)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 9.05(b), the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 9.05(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyIndemnifying Party), at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis at such times and places as may be reasonably necessary to provide defend against such Third Party Claim for the purpose of providing additional information and information, explanation of any material provided hereunderor testimony in connection with such Third Party Claim. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall agree to any settlement, compromise or discharge of a defend such Third Party Claim that the indemnifying party may recommend vigorously and that by its terms obligates the indemnifying party diligently to pay the full amount final conclusion or settlement of the liability in connection with such Third Party Claim, which releases ; provided that the indemnified party completely in connection with Indemnifying Party shall not settle such Third Party Claim without the consent of the Indemnified Party unless such settlement (i) does not involve any finding or admission of any violation of Law or any violation of the rights of any Indemnified Party and (ii) does not involve any relief other than monetary damages that would not otherwise adversely affect are paid in full by the indemnified partyIndemnifying Party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled have the right to assume the defense of any Third Party Claim if (and shall be liable for i) the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified Indemnifying Party is also a party in defending to such Third Party Claim) Claim and the Indemnified Party provides the Indemnifying Party with written advice of outside counsel to the Indemnified Party to the effect that there are or may be one or more legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party that, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice the prosecution of the defenses available to such Indemnified Party, (ii) such Third Party Claim is reasonably likely to result in Losses being sustained by the Indemnified Party that are beyond the scope or limits of the indemnification obligation of the Indemnifying Party or (iii) such Third Party Claim seeks an order, injunction solely injunctive or other equitable relief or relief for other than money damages (and only nominal monetary damages) against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Gramercy Capital Corp)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled have the right to participate, at its own expense, in assume the defense thereof andand control of such Third Party Claim (unless (i) the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate, (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its willingness and financial capacity to defend such Third Party Claim and provide indemnification with respect to such portion of such Third Party Claim which the Indemnifying Party is so required to indemnify or (iii) the Indemnified Party has determined in good faith that (A) the amount of the liability to be paid by the Indemnified Party as a result of such Third Party Claim is reasonably expected to exceed the amount which the Indemnifying Party would have to pay as a result of such Third Party Claim, or (B) such Third Party Claim may materially adversely affect the Indemnified Party or its Affiliates other than as a result of monetary damages, if it the Indemnifying Party so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedIndemnifying Party, however, that such which counsel is not must be reasonably objected satisfactory to by the indemnified partyIndemnified Party). Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 9.3(b), (i) the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof and (ii) it shall be conclusively established for purposes hereof that such Third Party Claim is within the scope of and subject to indemnification hereunder. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 9.3(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party ; provided, however, that the Indemnifying Party shall be liable for pay the fees and expenses of one separate counsel and one local if the employment of separate counsel employed shall have been authorized in writing by the indemnified party for any period during which Indemnifying Party in connection with defending such claim or the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed been advised by counsel that (A) there may be defenses available to give notice the Indemnified Party that are different to or additional to those available to the Indemnifying Party or (B) there is a conflict of the Third Party Claim as provided above)interest that could make it inappropriate under applicable standards of professional conduct to have common counsel. If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on at such times and places as may be reasonably necessary to defend against such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim. If notice is given to an Indemnifying Party of a mutually convenient basis Third Party Claim in accordance with this Section 9.3(b) and the Indemnifying Party does not, within thirty (30) days after such notice is given, give notice to provide additional information and explanation the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will be bound by any material provided hereunderdetermination made in such Third Party Claim or any settlement, compromise or discharge effected by the Indemnified Party. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability Indemnified Party unless such settlement (i) does not involve any finding or admission of any violation of Law or any violation of the rights of any Person and would not have any adverse effect on any other claims that may be made against the Indemnified Party, (ii) does not involve any relief other than monetary damages that are paid in connection with such Third full by the Indemnifying Party Claimand (iii) completely, which finally and unconditionally releases the indemnified party completely Indemnified Party in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyIndemnified Party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party Indemnified Party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Indemnified Party would be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief indemnification under this Agreement or other relief portion of (ii) the Third Party Claim can be so separated from that for money damagesis a criminal or administrative Action against the Indemnified Party or otherwise involves a Governmental Entity, or the indemnifying party shall be entitled underlying facts or circumstances of such Third Party Claim are reasonably expected to assume the defense of the portion relating give rise to money damagessuch an Action.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified partyparty in any material respect. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) (x) unless the indemnifying party acknowledges in writing, based on the alleged facts stated in the notice delivered to the indemnifying party pursuant to Section 8.05(a), its irrevocable and unconditional obligation to indemnify the indemnified party hereunder (subject to the limitations set forth in this Article VIII), (y) there is reasonable probability that the indemnifying party shall, after giving effect to the limitations set forth in Section 8.01(b) and the other provisions of this Agreement and the Ancillary Agreements, bear in excess of 50% of any Losses with respect to such claim and (z) if the Third Party Claim seeks involves primarily a claim for monetary damages and any claim for an order, injunction or other equitable relief or relief for other than money monetary damages against the indemnified party as part of such claim is only incidental to such claim for monetary damages (provided that if the Third Party Claim seeks more than an incidental order, injunction or other equitable relief or relief for other than monetary damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot can be readily separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money monetary damages, the indemnifying party shall be entitled to assume the control of the defense of the portion relating to money monetary damages).
Appears in 1 contract
Sources: Securities Purchase Agreement (Factset Research Systems Inc)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not -------- ------- reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; provided that the indemnifying party shall bear the -------- reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Price Entities (other than the Price Entities) and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third Party Claim in compliance with Section 15.4(a). The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof, provided that such counsel is not reasonably objected to by the indemnified party shall have failed to give notice of the Third Party Claim as provided above)indemnifying -------- party. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (National Golf Properties Inc)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such 4858-6402-6462.2 29042144.15/060690.0001 defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction injunction, or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Comstock Inc.)
Assumption. If a Third Third-Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooseschooses and acknowledges its obligation to fully indemnify, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedPROVIDED, howeverHOWEVER, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof. If the named parties to a Third-Party Claim include both the indemnifying party and the indemnified party and the indemnified party have been advised by counsel that there is a conflict of interest requiring the indemnified party to have separate counsel, the indemnifying party shall have failed to give notice be liable for all reasonable fees and expenses of one such separate counsel for all indemnified parties in connection with that Third-Party Claim. The indemnifying party shall be liable for the Third Party Claim as provided above)reasonable fees and expenses of one local counsel, if required. If the indemnifying party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party Claim, which releases the indemnified party completely in connection with such Third Third-Party Claim. If any Third-Party Claim seeks injunctive relief against an indemnified party and that such relief would not otherwise adversely affect the reasonably be likely to have an adverse effect on such indemnified party. Notwithstanding 's business operations, then notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume control the defense of such Third-Party Claim, including to retain counsel, at the portion relating indemnifying party's cost and expense, so long as the indemnifying party has the right to money damagesconsult and participate in such defense.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party representative, at its sole cost and expense, shall be entitled to participate, at its own expense, in assume the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, with counsel selected by the indemnifying partyparty representative; provided, however, that if such counsel is not reasonably objected to by the indemnified party on the basis of an actual conflict with such indemnified party, the Indemnifying Party shall thereafter assume the defense with counsel that does not have an actual conflict with such indemnified party. Should Subject to the limitations set forth in this Section the indemnifying party so elect representative shall be entitled to assume the defense of a such Third Party Claim with such counsel if it gives notice of its intention to do so to such indemnified party within 30 days of the receipt of notice of the Third Party Claim required by Section 10.5(a); provided that, prior to assuming control of such defense, the indemnifying party representative shall acknowledge that assuming that the claims made are true it would have an indemnity obligation for any Loss resulting from such Third Party Claim as provided under Section 7.2 or this ARTICLE 10 (it being understood that such acknowledgment would be based on the facts known at the time it is made). The indemnifying party representative shall not be entitled to assume or control the defense of any Third Party Claim, and shall pay the indemnifying party shall not be liable to the indemnified party for any legal fees and expenses subsequently incurred of a single firm of principal counsel retained by the indemnified party in connection therewith, if (x) the indemnifying party representative does not deliver the acknowledgment described in the immediately preceding sentence of this Section 10.5(b) within 30 days of receipt of notice of the claim pursuant hereto; (y) the claim arises in connection with any criminal proceeding, action, indictment, allegation or investigation; or (z) the defense thereofindemnifying party representative has failed or is failing to prosecute or defend vigorously the claim. If the indemnifying party representative assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, party representative) separate from the counsel employed by the indemnifying partyparty representative, it being understood that the indemnifying party representative shall control such defense. The indemnifying party representative shall be liable for the fees and expenses of one counsel and one local a single firm of principal counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)party. If the indemnifying party representative chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyparty representative’s request) the provision to the indemnifying party, party representative of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party representative assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyparty representative’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party representative assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party representative may recommend and that which (i) by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which (ii) expressly and unconditionally releases the indemnified party completely in connection with such Third Party Claim and that would Claim, (iii) does not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of impose any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction injunctive or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between on the indemnified party and the indemnifying party, then the indemnifying party shall (iv) does not be entitled to assume the defense include any admission or finding of any Third Party Claim until it executes a joint defense agreement with violation of applicable Law by or otherwise expressly disparage the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesparty.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ashland Global Holdings Inc)
Assumption. If a Third Party Claim is made against an indemnified partyparty and the indemnifying party confirms in writing that it is obligated to indemnify such indemnified party pursuant to this Article VIII, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party, PROVIDED that such Third Party Claim, together with all other indemnity claims then pending or theretofore made by the indemnified party, does not exceed the Indemnification Maximum; providedand, howeverPROVIDED, FURTHER, that such counsel is not reasonably objected to by the indemnified party. Any election to assume the defense by the indemnifying party must be made in writing within 30 days after notice of claim from the indemnified party or within 30 days after the indemnified party presents a proposed settlement for indemnifying party's approval as set forth below. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense, except to the extent that separate defenses are available to the indemnified party. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse thereof. If the indemnified party for its reasonable out-of-pocket expenses therefor (other than defends or prosecutes a Third Party Claim, all indemnifying parties shall cooperate in the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))defense or prosecution thereof. Such cooperation shall include the retention, retention and (upon the indemnifying or indemnified party’s 's request) the provision to the indemnifying party, or indemnified party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages. In the event the indemnifying party fails to assume the defense, settlement, or appeal of such Third Party Claim and/or fails to confirm in writing its obligation to indemnify the indemnified party pursuant to this Article VIII within 30 days after receipt of notice thereof from the indemnified party, the indemnified party shall have the right to undertake the defense, settlement, or appeal of such Third Party Claim.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; provided that the Indemnifying Parties shall bear the reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include both any Indemnifying Party and any Indemnified Party and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third Party Claim in compliance with Section 15.4(a). The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof, provided that such counsel is not reasonably objected to by the indemnified party shall have failed to give notice of the Third Party Claim as provided above)indemnifying party. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (National Golf Properties Inc)
Assumption. If a Third Third-Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect in writing to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable and documented fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Third-Party Claim as provided abovein accordance with Section 8.05(a)). If the indemnifying party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party Claim, Claim and which releases the indemnified party completely in connection with such Third Third-Party Claim and Claim; provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense not, without prior written consent of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim seeks an on a basis that would result in (i) injunctive or other nonmonetary relief against the indemnified party, including the imposition of a consent order, injunction or other equitable relief decree that would restrict the future activity or relief for other than money damages against conduct of the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion or (ii) a finding or admission of counsel for fault or misconduct by the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Martin Marietta Materials Inc)
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; provided that the indemnifying party shall bear the reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Holders and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third-Party Claim in compliance with Section 10.4.1 hereof. The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof, provided that such counsel is not reasonably objected to by the indemnified party shall have failed to give notice of the Third Party Claim as provided above)indemnifying party. If the indemnifying party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Third-Party Claim and that would not otherwise materially adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Cnet Networks Inc)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party in respect of, arising out of or involving a claim made or Proceeding brought by any third Person (a “Third Party Claim”), the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedIndemnifying Party, however, that such counsel is not reasonably objected subject to by the indemnified partylimitations set forth in this Section 11.04. Should the indemnifying party Indemnifying Party so elect in writing to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the reasonable and documented out-of-pocket fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided abovein Section 11.04(a)). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party Indemnifying Party may recommend and that by its terms obligates the indemnifying party Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party Indemnified Party completely without liability in connection with such Third Party Claim and Claim; provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding Indemnifying Party shall not, without prior written consent of the foregoing, the indemnifying party Indemnified Party (which consent shall not be entitled unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (i) injunctive or other nonmonetary relief against the Indemnified Party, including the imposition of an Injunction that would restrict the future activity or conduct of the Indemnified Party or (ii) a finding or admission of fault or misconduct by the Indemnified Party. Notwithstanding anything in this Section 11.04 to the contrary, the Indemnifying Party shall not be permitted to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks imposition of (1) criminal penalties against the Indemnified Party, (2) an order, injunction Injunction or other equitable relief or relief for against the Indemnified Party (other than money an Injunction or equitable relief that is incidental and de minimis to monetary damages against as the indemnified primary relief sought) or (3) the Indemnifying Party is also party that to the indemnified party reasonably determinesThird Party Claim, after conferring with its and in the opinion of the Indemnified Party’s outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest exists between the indemnified party Indemnifying Party and the indemnifying party, then Indemnified Party (or there are defenses available to the indemnifying party shall not be entitled Indemnified Party that are unavailable to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnifying Party).
Appears in 1 contract
Assumption. If a Third Third-Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooseselects in writing, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Third-Party Claim following the 30 business day period set forth in clause (a) of this Section 8.05, as provided above). If the named parties to a Third-Party Claim include both the indemnifying party and the indemnified party and the indemnified party have been advised by counsel that there is a conflict of interest requiring the indemnified party to have separate counsel, the indemnifying party shall be liable for all reasonable fees and expenses of one such separate counsel for all indemnified parties in connection with that Third-Party Claim. The indemnifying party shall be liable for the reasonable fees and expenses of one local counsel, if required. If the indemnifying party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Third-Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.=============================================================================== -43-
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying Indemnifying Party shall (unless (i) the Indemnifying Party is also a party shall to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim) be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 8.05(b), (i) the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereofthereof and (ii) it shall be conclusively established for purposes hereof that such Third Party Claim is within the scope of and subject to indemnification hereunder. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 8.05(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; provided, however, that the indemnifying party shall bear the reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Shareholders and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third-Party Claim in compliance with Section 10.4.1 hereof. The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof, provided, however, that such counsel is not reasonably objected to by the indemnified party shall have failed to give notice of the Third Party Claim as provided above)indemnifying party. If the indemnifying party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include include, to the retentionextent within the control of each such Indemnified Party, the retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third The Indemnified Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party ClaimClaim (and, with respect to indemnification by the Escrow Participants, for which the Escrow Consideration then remaining in the Escrow Account is sufficient to satisfy the entire settlement, compromise or discharge), which releases the indemnified party Indemnified Party completely in connection with such Third Third-Party Claim and that would not otherwise materially adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Check Point Software Technologies LTD)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereofthereof (except as provided below). If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expensecounsel, separate from the counsel employed by the indemnifying party, it being understood at its own expense (except that the legal expenses of such separate counsel shall be borne by the indemnifying party if (i) the indemnified party shall control have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party or (ii) the named parties in any Proceeding (including any impleaded parties) related to such defenseThird Party Claim include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them). The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, (A) the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party, and (B) the indemnified party shall not enter into any settlement, compromise or discharge of a Third Party Claim without the prior written consent of the indemnifying party (which shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, (i) the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if (x) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between damages or (y) the indemnified party and reasonably believes itself to be exposed, in the event that such Third Party Claim is not resolved in the indemnified party or indemnifying party’s favor, then to Losses in excess of amounts reasonably expected to be received from the indemnifying party and (ii) the Company shall not be entitled to assume the defense with respect to any Third Party Claim that relates to any Intellectual Property of the Company or any of its affiliates (including, after the Closing, the Business Intellectual Property) or that is brought by Wyeth or any of its affiliates in respect of the Collaboration Agreement; provided that, in the case of both clauses (i) and (ii) above, the Company shall not settle any Third Party Claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). In the case of any Third Party Claim until it executes a joint defense agreement with referred to in clause (i)(x) of the indemnified party in form reasonably satisfactory to both parties. If immediately preceding sentence, if such equitable relief or other relief portion of the such Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion of such Third Party Claim relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not of its choice reasonably objected acceptable to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. Notwithstanding any other provision of this Agreement, the indemnifying party shall not have the right to assume or continue the defense of any Third Party Claim (and the indemnifying party shall be liable to the indemnified party for its legal expenses) if (i) in the reasonable opinion of the indemnified party, counsel for the indemnifying party could not adequately represent the interests of the indemnified party because its interests could be in conflict with those of the indemnifying party; (ii) the Third Party Claim is reasonably likely to have a material adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the indemnifying party; or (iii) the indemnifying party shall not have assumed and diligently continued the defense of the Third Party Claim in a timely fashion. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Stock Purchase Agreement (Clean Energy Fuels Corp.)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party in respect of, arising out of or involving a claim made or Proceeding brought by any third Person (a “Third- Party Claim”), the indemnifying party Indemnifying Party shall be entitled to participateto, at its own sole cost and expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying partyIndemnifying Party, subject to the limitations set forth in this Section 10.04; provided, however, that if the Indemnifying Party chooses to assume the defense thereof, it shall, prior to assuming the defense of such counsel is not reasonably objected Third-Party Claim, give written notice to the Indemnified Party stating (A) that the Indemnifying Party would be liable for indemnity under the provisions hereof for such Third-Party Claim (subject to the limitations set forth herein), and (B) that the Indemnifying Party will be solely responsible for all costs, expenses and Losses incurred by the indemnified partyit in connection with or otherwise relating to such claim. Should the indemnifying party Indemnifying Party so elect in writing to assume the defense of a Third Third-Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the reasonable and documented out-of-pocket fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Third-Party Claim as provided abovein Section 10.04(a)). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties applicable Indemnified Parties shall reasonably cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s reasonable request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Third-Party ClaimClaim and in the possession of the Indemnified Party or its Representatives, and making employees of the Indemnified Party reasonably available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall keep the Indemnified Party timely appraised of any material developments with respect to such Third-Party Claim that is assumed by the Indemnifying Party and the Indemnified Party shall be entitled to receive copies of all substantive pleadings, notices and communications with respect to such Third-Party Claim as the Indemnified Party may reasonably request. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party Indemnifying Party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party Indemnifying Party may recommend and that so long as (x) such settlement, compromise or discharge by its terms obligates the indemnifying party Indemnifying Party to pay the full amount of the liability in connection with such Third Third-Party Claim, which (y) does not require any Indemnified Party to agree to any covenants or other obligations other than customary covenants to keep the terms of the settlement confidential and (z) releases the indemnified party Indemnified Party and its Affiliates completely and unconditionally without liability in connection with such Third Third-Party Claim; provided, however, that the Indemnifying Party shall not, without prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim and on a basis that would not otherwise adversely affect result in (i) injunctive or other nonmonetary relief against the indemnified partyIndemnified Party, including the imposition of an Injunction that would restrict the future activity or conduct of the Indemnified Party or (ii) a finding or admission of fault or misconduct by the Indemnified Party. Notwithstanding anything in this Section 10.04 to the foregoingcontrary, the indemnifying party Indemnifying Party shall not be entitled permitted to assume the defense of any Third Third-Party Claim if (1) the Third-Party Claim seeks imposition of criminal or quasi-criminal penalties against the Indemnified Party, (2) the Third-Party Claim seeks imposition of an Injunction or equitable relief against the Indemnified Party (other than an Injunction or equitable relief that is incidental and de minimis to monetary damages as the primary relief sought), (3) the Indemnifying Party is also party to the Third-Party Claim, and in the opinion of the Indemnified Party’s outside counsel, a conflict exists between the Indemnifying Party and the Indemnified Party (or there are defenses available to the Indemnified Party that are unavailable to the Indemnifying Party), (4) if the Third-Party Claim were to be unfavorably decided or resolved, the Indemnified Party would be reasonably likely to be liable for Losses in excess of the amounts required to be paid by the Indemnified Party pursuant to this Article X, or (5) in the good faith judgment of the Indemnified Party, the Indemnifying Party fails to vigorously prosecute or defend such Third-Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion each of the Third Party Claim can be so separated from that for money damagesforegoing, an “Exception Claim”). Notwithstanding anything to the contrary set forth herein, the indemnifying party Indemnified Party shall be entitled to assume reimbursement for the reasonable and documented fees and expenses incurred by the Indemnified Party for the defense or prosecution of any Third-Party Claim to the portion relating extent that the Indemnifying Party does not elect to money damagesassume such Third-Party Claim in accordance with this Section 10.04 or is unable to assume such Third-Party Claim as a result of an Exception Claim. Notwithstanding anything to the contrary herein, Section 6.06(i)(iii) (and not this Section 10.04(b)) shall apply with respect to any Third-Party Claims related to Taxes.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Hanesbrands Inc.)
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, in assume the defense thereof and(unless the Indemnifying Party indicates it is not willing to defend such Third-Party Claim), if it the Indemnifying Party so chooses, to assume the defense thereof, at its own expense, with counsel selected by the indemnifying party; providedIndemnifying Party, howeverwhich counsel must be reasonably satisfactory to the Indemnified Party, that by giving written notice thereof to the Indemnified Party within 20 Business Days after the Indemnified Party provides a Claim Notice to the Indemnifying Party of such counsel is not reasonably objected to by Third-Party Claim. If the indemnified party. Should the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Third-Party ClaimClaim in accordance with this Section 11.6(b), the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any Party of any attorney-client privilege in connection with such Third-Party Claim. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third-Party Claim in accordance with this Section 11.6(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected satisfactory to by the indemnifying party)Indemnifying Party, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense. The indemnifying party shall be liable for defense and the fees settlement, arbitration, litigation and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed appellate strategy related to give notice of the Third such Third-Party Claim as provided above)subject to the other terms hereof. If the indemnifying party Indemnifying Party chooses to defend or prosecute assume the defense of a Third Third-Party Claim, all the indemnified parties Indemnified Party shall cooperate in the defense or prosecution thereof thereof. If a Claim Notice is given to the Indemnifying Party of a Third-Party Claim in accordance with this Section 11.6(b) and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified partyIndemnifying Party does not, which are governed by the second preceding sentence within 20 Business Days after such Claim Notice is given, give notice in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision writing to the indemnifying party, Indemnified Party of records and information that are reasonably relevant its election to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes assume the defense of a Third such Third-Party Claim, the indemnified party Indemnified Party shall have the right, but not admit the obligation, to assume its own defense, provided that the Indemnified Party may not settle any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Third-Party Claim without the indemnifying party’s prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld withheld, conditioned or delayed); provided, further, that any such consent provided by an Indemnifying Party shall not prejudice such Indemnifying Party’s ability to dispute whether an Indemnified Party is entitled to indemnification for such Third-Party Claim under this Article XI. If the indemnifying party Indemnifying Party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnifying Party shall agree use its commercially reasonable efforts to any settlement, compromise or discharge of a Third defend such Third-Party Claim vigorously and diligently to final conclusion or settlement of such Third-Party Claim; provided, however, that the indemnifying party may recommend and that by its terms obligates Indemnifying Party shall not settle such Third-Party Claim without the indemnifying party to pay the full amount consent of the liability Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in (i) a finding or admission of any violation of Law or the rights of any Person that would have any adverse effect on any other claims that may be made against any Person, (ii) any relief other than monetary damages paid in full by the Indemnifying Party or any of its Affiliates or (iii) no complete, final and unconditional release of the Indemnified Party in connection with such Third Third-Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim if (and shall be liable for i) the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money monetary damages against for which the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not Indemnified Party would be entitled to assume indemnification under this Agreement, (ii) the defense of any Third Third-Party Claim until it executes is a joint defense agreement with criminal or administrative proceeding, or relates to such a proceeding, or the indemnified party underlying facts or circumstances of which could reasonably be expected to give rise to such a proceeding or (iii) in form reasonably satisfactory the case of a Purchaser Indemnitee, a Purchaser Indemnitee is seeking full recovery relating to both parties. If such equitable relief or other relief portion of the Third Third-Party Claim can be so separated from that for money damages, under the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesRWI Policy.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect in writing to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable and documented fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided abovein accordance with Section 8.06(a)). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect toto (other than giving testimony under oath when required to do so), or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim and Claim; provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not, without prior written consent of the indemnified party (which consent shall not be entitled unreasonably withheld, conditioned or delayed), settle, compromise or offer to assume the defense of settle or compromise any Third Party Claim on a basis that would result in (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by i) injunctive or other nonmonetary relief against the indemnified party in defending such Third Party Claim) if party, including the Third Party Claim seeks an imposition of a consent order, injunction or other equitable relief decree that would restrict the future activity or relief for other than money damages against conduct of the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion or (ii) a finding or admission of counsel for fault or misconduct by the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party in respect of, arising out of or involving a claim made or Proceeding brought by any third Person (a “Third Party Claim”), the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; providedIndemnifying Party, however, that such counsel is not reasonably objected subject to by the indemnified partylimitations set forth in this Section 11.04. Should the indemnifying party Indemnifying Party so elect in writing to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the reasonable and documented out-of-pocket fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided abovein Section 11.04(a)). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party Indemnifying Party may recommend and that by its terms obligates the indemnifying party Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party Indemnified Party completely without liability in connection with such Third Party Claim and Claim; 71 provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding Indemnifying Party shall not, without prior written consent of the foregoing, the indemnifying party Indemnified Party (which consent shall not be entitled unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (i) injunctive or other nonmonetary relief against the Indemnified Party, including the imposition of an Injunction that would restrict the future activity or conduct of the Indemnified Party or (ii) a finding or admission of fault or misconduct by the Indemnified Party. Notwithstanding anything in this Section 11.04 to the contrary, the Indemnifying Party shall not be permitted to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks imposition of (1) criminal penalties against the Indemnified Party, (2) an order, injunction Injunction or other equitable relief or relief for against the Indemnified Party (other than money an Injunction or equitable relief that is incidental and de minimis to monetary damages against as the indemnified primary relief sought) or (3) the Indemnifying Party is also party that to the indemnified party reasonably determinesThird Party Claim, after conferring with its and in the opinion of the Indemnified Party’s outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest exists between the indemnified party Indemnifying Party and the indemnifying party, then Indemnified Party (or there are defenses available to the indemnifying party shall not be entitled Indemnified Party that are unavailable to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnifying Party).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (John Bean Technologies CORP)
Assumption. If a Third Party Claim is made against an indemnified party---------- Indemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; provided that the indemnifying party shall bear the reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Symphony Parties (other than the Company) and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third Party Claim in compliance with Section 9.6(a). The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof, provided that such counsel is not reasonably objected to by the indemnified party shall have failed to give notice of the Third Party Claim as provided above)indemnifying party. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided that the indemnifying party shall not have the right to assume the defense thereof where (1) the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party has reasonably concluded based on the advice of counsel that there are legal defenses available to it which are different from, additional to or inconsistent with those available to the indemnifying party, or (2) it is reasonably likely that the losses or damages arising or resulting from such Third Party Claim will exceed the amount the indemnified party will be entitled to recover from the indemnifying party pursuant to this Agreement; provided, howeverfurther, that such counsel is not reasonably objected notwithstanding the forgoing proviso, Seller shall have the absolute right to by assume the indemnified partydefense of any Third Party Claim related to the matters on Section 11.01(a) of the Purchaser Disclosure Schedule. Should the indemnifying party so elect in writing to assume the defense of a Third Party Claim, and so long as the indemnifying party thereafter continues to diligently defend such Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim and Claim; provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not, without prior written consent of the indemnified party (which consent shall not be entitled unreasonably withheld, conditioned or delayed), settle, compromise or offer to assume the defense of settle or compromise any Third Party Claim on a basis that would result in (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by i) injunctive or other nonmonetary relief against the indemnified party in defending such Third Party Claim) if party, including the Third Party Claim seeks an imposition of a consent order, injunction or other equitable relief decree that would restrict the future activity or relief for other than money damages against conduct of the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion or (ii) a finding or admission of counsel for fault or misconduct by the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Covia Holdings Corp)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not Indemnifying Party and reasonably objected satisfactory to by the indemnified partyIndemnified Party. Should the indemnifying party Indemnifying Party so elect to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to diligently defend such Third Party Claim in the reasonable judgment of the Indemnified Party, then the Indemnified Party may assume its own defenses, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection with such defense. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying partyIndemnifying Party), at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof thereof. Notwithstanding anything to the contrary contained in this Section 6.04, in the event a Third Party Claim is made against an Indemnified Party as to which such Indemnified Party is entitled to seek indemnification hereunder and (other than during any period in which the indemnified party shall have failed to give notice of i) the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (seeks damages other than the fees and expenses of counsel employed by the indemnified partymoney damages, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s requestii) the provision then-current balance of the Holdback Amount is insufficient to satisfy at least 50% of the indemnifying party, of records and information amount that are reasonably relevant to is being sought in such Third Party Claim, (iii) within thirty (30) days of assuming the defense of such Third Party Claim, the Indemnifying Party does not expressly agree in writing to be fully responsible for all Losses relating to such Third Party Claim up to the lesser of (A) the remaining funds of the Holdback Amount or (B) the amount of damages sought in such Third Party Claim, or (iv) the Indemnified Party, after conferring with its counsel and making employees available on with the Indemnifying Party , reasonably determines that a mutually convenient basis conflict of interest makes separate representation by the Indemnified Party’s own counsel advisable, then, in any such case, the Indemnified Party may elect to provide additional information retain and explanation control the defense of any material provided hereundersuch Third Party Claim with one counsel selected by such Indemnified Party and reasonably satisfactory to the Indemnifying Party and will be entitled to be reimbursed by the Indemnifying Party for reasonable fees and expenses of its counsel incurred in such defense. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent Consent (which shall not be unreasonably withheld). No Indemnifying Party shall settle or compromise any Third Party Claim in which any relief other than the payment of money damages is sought against the Indemnified Party unless the Indemnified Party Consents in writing to such settlement or compromise (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Stock Purchase Agreement (Zix Corp)
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; provided, however, that the indemnifying party shall bear the reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Principal Members or KMV Corporation Shareholders and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third-Party Claim in compliance with Section 10.4(a) hereof. The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof, provided, however, that such counsel is not reasonably objected to by the indemnified party shall have failed to give notice of the Third Party Claim as provided above)indemnifying party. If the indemnifying party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and at the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))'s expense. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Third-Party Claim and that would not otherwise materially adversely affect the indemnified partyIndemnified Party. Notwithstanding the foregoing, an Indemnified Party shall have the indemnifying party shall not be entitled right to assume jointly control the defense of any Third Third-Party Claim (and shall be liable for against such Indemnified Party in the reasonable fees and expenses of one counsel and one local counsel incurred by event the indemnified party in defending potential Losses with respect to such Third Party Claim) if , when aggregated with all other satisfied or pending Losses subject to indemnification pursuant to Section 10.1, 10.2 and 10.3 hereof exceed the Third Party Claim seeks an orderlimits set forth in Section 10.6(a), injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense case of any Third Party Claim until it executes a joint defense agreement with Parent Indemnitee, or Section 10.6(b), in the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion case of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesany Seller Indemnitee.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Stock Purchase Agreement (Moodys Corp /De/)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. Notwithstanding the foregoing, the indemnifying party shall bear the reasonable fees, costs and expenses of one such separate counsel to the indemnified party in each jurisdiction (and shall pay such fees, costs and expenses as incurred), if the defendants in, or targets of, any such action or proceeding include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party or that representation by the same counsel may be a conflict of interest (in which case the indemnifying party shall not have the right to direct the defense of such action or II-24 proceeding on behalf of the indemnified party). If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the The indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party A) shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party, and (B) shall not enter into any settlement, compromise or discharge of a Third Party Claim without the prior written consent of the indemnifying party (which shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in In the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense case of any Third Party Claim until it executes a joint defense agreement with referred to in the indemnified party in form reasonably satisfactory to both parties. If immediately preceding sentence, if such equitable relief or other relief portion of the such Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion of such Third Party Claim relating to money damages.
Appears in 1 contract
Sources: Securities Purchase Agreement (Emmis Communications Corp)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected acceptable to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (counsel, not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above)) to the extent the Third Party Claim is indemnifiable hereunder. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which Claim and that releases the indemnified party Indemnified Party completely in connection with such Third Party Claim Claim, without prejudice, and that would does not otherwise adversely affect include any admission of wrong doing as attributed to the indemnified partyIndemnified Party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the defense of any Third Party Claim (Indemnified Party) and shall be liable for pay the reasonable fees and expenses of one counsel and one local counsel incurred retained by the indemnified party in defending such Third Indemnified Party Claimif (i) if the Third Party Claim seeks an orderfor indemnification is based on any criminal or quasi-criminal proceeding, injunction action, indictment, allegation or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of investigation; (ii) the Third Party Claim can be so separated from solely seeks an injunction or similar equitable relief against the Indemnified Party; or (iii)the Indemnified Party reasonably believes at any time that for money damages, the indemnifying party shall Covered Losses relating to the Third Party Claim could exceed 200% of the maximum amount that such Indemnified Party could then be entitled to assume recover under the defense applicable provisions of the portion relating to money damagesthis Article IX.
Appears in 1 contract
Assumption. If a Third Third-Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that provided it acknowledges its indemnity obligations under this Agreement and agrees to fully pay such counsel is not reasonably objected to by the indemnified partyThird-Party Claim. Should the indemnifying party so elect in writing to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof; provided, however, that the indemnifying party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim, and shall pay the reasonable and documented fees and expenses of outside counsel retained by the indemnified party, if (i) the Third-Party Claim seeks an injunction or equitable relief against the indemnified party or any of its Affiliates that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages (if such equitable relief or other relief portion of the Third-Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion solely relating to money damages); (ii) the indemnifying party is also a party to such Third-Party Claim, and in the opinion of the indemnified party’s outside counsel, a conflict exists between the indemnifying party and the indemnified party (or there are defenses available to the indemnified party that are unavailable to the indemnifying party), (iii) the defense and conduct of the Third-Party Claim is handled by the insurer pursuant to the representation and warranties insurance policy terms and conditions, (iv) such Third-Party Claim involves criminal liability or may reasonably result in criminal Actions or (v) if the indemnifying party failed or is failing to vigorously prosecute or defend such Third-Party Claim, in which events the indemnified party shall assume the defense. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable and documented fees and expenses of one counsel and one local outside counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Third-Party Claim as provided abovein accordance with Section 8.06(a)). If the indemnifying party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party Claim, Claim and which releases the indemnified party completely in connection with such Third Third-Party Claim and Claim; provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense not, without prior written consent of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim seeks an on a basis that would result in (i) injunctive or other nonmonetary relief against the indemnified party, including the imposition of a consent order, injunction or other equitable relief decree that would restrict the future activity or relief for other than money damages against conduct of the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion or (ii) a finding or admission of counsel for fault or misconduct by the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. Notwithstanding the election of the indemnifying party to assume the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such Third Party Claim, and the indemnifying party shall bear the reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Old Mutual Parties (other than the Company) and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third Party Claim in compliance with Section 9.5(a). The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which thereof; provided that such counsel is not reasonably objected to by the indemnified party shall have failed to give notice of the Third Party Claim as provided above)indemnifying party. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s 's request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge discharge, or consent offer to the entry of any judgment forsettle, compromise or discharge, such Third Party Claim without the indemnifying party’s 's prior written consent (which consent shall not be unreasonably withheld or delayed); provided, however, that if the indemnifying party withholds its consent to a settlement of a Third Party Claim, Losses with respect to which would be subject to the Buyer Indemnity Cap or the Old Mutual Indemnity Cap, (i) for an amount equal to or less than the Buyer Indemnity Cap or the Old Mutual Indemnity Cap, as the case may be, minus any amounts previously paid by the indemnifying party or parties for Losses subject to the limitations set forth in Section 9.3(b) or 9.3(c), as applicable, and the Third Party Claim ultimately results in Losses in excess of such amount, the indemnifying party shall be liable to the Indemnified Party for all Losses from such Claim (notwithstanding the limitations set forth in Section 9.3(b) or Section 9.3(c), as applicable) or (ii) for an amount in excess of the Buyer Indemnity Cap or the Old Mutual Indemnity Cap, as applicable, minus any amounts previously paid by the indemnifying party or parties for Losses subject to the limitations set forth in Section 9.3(b) or 9.3(c), as applicable, and the Third Party Claim ultimately results in Losses in excess of the proposed settlement amount, the indemnifying party shall be liable to the Indemnified Party (notwithstanding the limitations set forth in Section 9.3(b) or 9.3(c), as applicable) for all Losses from such Third Party Claim less an amount equal to the difference between (A) the amount of the proposed settlement to which the indemnifying party did not consent and (B) the Buyer Indemnity Cap or the Old Mutual Indemnity Cap, as the case may be, minus any amount previously paid by the indemnifying party or parties for Losses subject to the limitations set forth in Section 9.3(b) or 9.3(c), as applicable. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Assumption. If a Third Third-Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnified Party. Should the indemnifying party so elect to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party Indemnified Party for any reasonable legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense; provided, however, that the indemnifying party shall bear the reasonable fees and expenses of such separate counsel (i) if the parties to any such action or proceeding (including impleaded parties) include any of the Stockholders and representation of both parties would, in the reasonable opinion of counsel for the Indemnified Party, be inappropriate due to a conflict of interest or (ii) if the indemnifying party shall not have employed counsel (other than counsel that is reasonably objected to by the Indemnified Party) within a reasonable time after the Indemnified Party has given notice of the institution of a Third-Party Claim in compliance with Section 10.3.1 hereof; provided, however, that in no event shall the indemnifying party have to bear the fees and expenses of more than one separate counsel for all Indemnified Parties. The indemnifying party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Third-Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include include, to the retentionextent within the control of each such Indemnified Party, the retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third The Indemnified Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Third-Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Third-Party ClaimClaim (and, with respect to indemnification by the Escrow Participants, for which the Escrow Shares then remaining in the Escrow Account are sufficient to satisfy the entire settlement, compromise or discharge), which releases the indemnified party Indemnified Party completely in connection with such Third Third-Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an ----------- indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooseschooses and acknowledges in writing its liability to indemnify the indemnified party for the amounts, if any, awarded to the claimant pursuant to such Third Party Claim, or agreed to be paid to the claimant pursuant to a settlement of such Third Party Claim, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, -------- however, that such counsel is not reasonably objected to by the indemnified ------- party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above)thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b)). Such cooperation shall include the retention, and (upon the indemnifying party’s request) the provision to the indemnifying party, of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.prosecution
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying Indemnifying Party shall (unless the Indemnifying Party is also a party shall to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate) be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, Indemnifying Party (provided that such counsel is not reasonably objected to by the indemnified partyIndemnified Party), at its own expense by giving written notice to the Indemnified Party within fifteen Business Days of receiving notice of the Third Party Claim. Should If the indemnifying party so elect to assume Indemnifying Party assumes the defense of a Third Party ClaimClaim in accordance with this Section 7.4(b), the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defensethe defense of a Third Party Claim in accordance with this Section 7.4(b), the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (provided such counsel is not reasonably objected to by the indemnifying partyIndemnifying Party), at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the reasonable fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s Indemnifying Party's request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis at such times and places as may be reasonably necessary to provide defend against such Third Party Claim for the purpose of providing additional information and information, explanation of any material provided hereunderor testimony in connection with such Third Party Claim. Whether or not If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnifying Party shall defend such Third Party Claim vigorously and diligently to final conclusion or settlement of such Third Party Claim; provided that the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment for, settle such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cheniere Energy Partners, L.P.)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume (within 30 Business Days after receipt of notice of such Third Party Claim) the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party and reasonably acceptable to the indemnified party; provided, however, that such counsel is the indemnifying party shall not reasonably objected have the right to by assume the defense of any Third Party Claim and the indemnified party shall have the right to conduct and control the defense of such Third Party Claim and any litigation resulting therefrom and in connection therewith to employ, at the indemnifying party’s expense, one counsel of its choice in each applicable jurisdiction (if more than one jurisdiction is involved) to represent the indemnified party if (i) the indemnifying party elects not to defend, compromise or settle a Third Party Claim, (ii) if the indemnifying party fails to notify the indemnified party within the required time period of its election as provided in this Section 8.07(b), (iii) the Third Party Claim has or would reasonably be expected to result in Losses in excess of the amounts available for indemnification pursuant to this Article VIII, (iv) the Third Party Claim seeks injunctive or other equitable relief against an indemnified party, (v) the Third Party Claim involves or may involve criminal conduct or (vi) the indemnifying party, having timely elected to defend a Third Party Claim, fails to adequately prosecute or pursue such defense. Should the indemnifying party assume, and so elect in writing to assume assume, the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party is entitled and chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall reasonably cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim and Claim; provided, however, that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not, without prior written consent of the indemnified party (which consent shall not be entitled unreasonably withheld, conditioned or delayed), settle, compromise or offer to assume the defense of settle or compromise any Third Party Claim on a basis that would result in (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by x) injunctive or other nonmonetary relief against the indemnified party in defending such Third Party Claim) if party, including the Third Party Claim seeks an imposition of a consent order, injunction or other equitable relief decree that would restrict the future activity or relief for other than money damages against conduct of the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion or (y) a finding or admission of counsel for fault or misconduct by the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party; provided, however, that solely in connection with any settlement, compromise or discharge of any claim to which the Principal Seller’s indemnification obligations under Section 7.02(d) apply, the indemnified party shall agree to any such settlement, compromise or discharge which includes a release of the indemnified party in respect of Indemnification Losses. Notwithstanding the foregoing, except in respect of any Third Party Claim falling within the scope of Section 7.02(d), the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 1 contract
Sources: Stock Purchase Agreement (Factset Research Systems Inc)
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect in writing to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable and documented fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided abovein accordance with Section 8.05(a)). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all of the indemnified parties shall reasonably cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to testify and provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed)consent. If the indemnifying party assumes the defense of a Third Party Claim, the indemnified indemnifying party shall agree to any settlement, compromise or discharge of a defend such Third Party Claim diligently to final conclusion or settlement of such Third Party Claim; provided, however, that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount shall not, without prior written consent of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third Party Claim and on a basis that would not otherwise adversely affect reasonably be expected to result in (i) injunctive or other nonmonetary relief against the indemnified party, including the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the indemnified party or (ii) a finding or admission of fault or misconduct by the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and control of, and shall be liable for pay the reasonable fees and expenses of one counsel and one local counsel incurred by retained by, the indemnified party in defending connection with a Third Party Claim as they are incurred if: (A) such Third Party ClaimClaim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (B) if the such Third Party Claim seeks an ordernon-monetary relief which, injunction or other equitable relief or relief for other than money damages against if granted, could adversely affect the indemnified party party, and that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be readily separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified partydamages (provided, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If that if such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages), (C) the monetary relief being sought is in excess of the amount that the indemnifying party is required to indemnify the indemnified party for, (D) the indemnified party has been advised in writing by counsel that a reasonable likelihood exists of conflict of interest between the indemnifying party and the indemnified party, or (E) where a Purchaser Indemnitee is the indemnified party, the indemnified party has made a claim with the insurer under the R&W Insurance Policy with respect to such Third Party Claim in accordance with the terms of the R&W Insurance Policy, if applicable.
Appears in 1 contract
Assumption. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that so long as such counsel is not reasonably objected to by the indemnified party; provided, however, that as a condition to assuming such defense, the indemnifying party shall acknowledge its responsibility for Losses resulting from or relating to such Third Party Claim. Should the indemnifying party so elect in writing to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its in a commercially reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))manner. Such cooperation shall include the retention, retention and (upon the indemnifying party’s request) the provision to the indemnifying party, party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder; provided, however, that such indemnified parties may withhold any such records or information to the extent necessary to preserve attorney client privilege, so long as such indemnified parties deliver to the indemnifying party the information contained in such records or information to the extent possible while preserving such attorney client privilege. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay bear the full amount of the liability in connection with such Third Party Claim, Claim and which releases the indemnified party completely in connection with such Third Party Claim; provided, however, that the indemnifying party shall not, without prior written consent of the indemnified party (which consent shall not be unreasonably withheld), settle, compromise or offer to settle or compromise any Third Party Claim and on a basis that would not otherwise adversely affect result in (A) injunctive or other nonmonetary relief against the indemnified party, including the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the indemnified party, or (B) a finding or admission of a violation of law by the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if (W) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party damages (and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If if such equitable relief or other nonmonetary relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages), (X) the indemnifying party and the indemnified party both are named parties to the proceedings and the indemnified party has reasonably concluded, after conferring with its outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (Y) the indemnifying party is not entitled to a legal defense or counterclaim available to the indemnified party.
Appears in 1 contract
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD)
Assumption. If a Third Party Claim is made against an indemnified partyIndemnified Party, the indemnifying party Indemnifying Party shall be entitled to participate, at its own expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof, at its own expense, thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified partyIndemnifying Party. Should the indemnifying party Indemnifying Party so elect to assume the defense of a Third Party Claim, the indemnifying party Indemnifying Party shall not be liable to the indemnified party Indemnified Party for any legal expenses subsequently incurred by the indemnified party Indemnified Party in connection with the defense thereof. If the indemnifying party Indemnifying Party assumes such defense, the indemnified party Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party)counsel, at its own expense, separate from the counsel employed by the indemnifying partyIndemnifying Party, it being understood that the indemnifying party Indemnifying Party shall control such defense. The indemnifying party Indemnifying Party shall be liable for the fees and expenses of one counsel and one local counsel employed by the indemnified party Indemnified Party for any period during which the indemnifying party Indemnifying Party has not assumed the defense thereof (other than during any period in which the indemnified party Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the indemnified parties Indemnified Parties shall cooperate in the defense or prosecution thereof and the indemnifying party shall reimburse the indemnified party for its reasonable out-of-pocket expenses therefor (other than the fees and expenses of counsel employed by the indemnified party, which are governed by the second preceding sentence in this Section 10.6(b))thereof. Such cooperation shall include the retention, retention and (upon the indemnifying partyIndemnifying Party’s request) the provision to the indemnifying party, Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderunder this Agreement. Whether or not the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to the entry of any judgment fordischarge, such Third Party Claim without the indemnifying partyIndemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld). If the indemnifying party Indemnifying Party assumes the defense of a Third Party Claim, the indemnified party Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party Indemnifying Party may recommend and that by its terms obligates the indemnifying party Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of one counsel and one local counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If in the reasonable opinion of counsel for the indemnified party, there is a conflict of interest between the indemnified party and the indemnifying party, then the indemnifying party shall not be entitled to assume the defense of any Third Party Claim until it executes a joint defense agreement with the indemnified party in form reasonably satisfactory to both parties. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damagesIndemnified Party.
Appears in 1 contract