General Indemnification Provisions. (a) For the purposes of this Section 6.04, the term Indemnitee shall refer to the person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 6.02 or Section 6.03, Indemnitor such provisions. (b) An Indemnitee shall give written Notice of Claim days after the Indemnitee has knowledge of any claim (including a Third-party Claim, as hereinafter defined) which an Indemnitee has determined has given or could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known. (c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law. (d) The obligations and liabilities of an Indemnitor under this Article VI with respect to Losses arising from claims of any third party that are subject to the indemnification provisions provided for in this Article VI Third-party Claims conditions: the Indemnitee shall promptly deliver to the Notice of Claim in accordance with Section 6.04(b) to the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VI, the Indemnitor shall have the right to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Claim by appropriate proceedings at its sole cost and expense with counsel reasonably acceptable to the Indemnitee, in which case the Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim. (e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitor. (f) Notwithstanding the foregoing, no compromise or settlement of any claim shall be made without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its Affiliates.
Appears in 1 contract
Sources: Asset Purchase Agreement
General Indemnification Provisions. (a) For The indemnified party shall promptly notify the purposes indemnifying party of any claim, demand, action or proceeding for which indemnification is sought under Section 6.2 or 6.3 of this Section 6.04Agreement and, if such claim, demand, action or proceeding is a third party claim, demand, action or proceeding, the term Indemnitee shall refer indemnifying party will have the right, at its own expense, to assume the defense thereof using counsel reasonably acceptable to the person indemnifiedindemnified party, except in the case of a claim that relates to Taxes, as to which Purchaser shall assume the defense, and Seller may, at their sole expense, participate in such defense. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action or proceeding. In connection with any such third party claim, demand, action or proceeding, the parties thereto shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action or proceeding shall be settled without prior written consent of the indemnified party, provided, however, that if a firm, written offer is made to settle any such third party claim, demand, action or proceeding and the indemnifying party proposes to accept such settlement and the indemnified party refuses to consent to such settlement, then: (i) the indemnifying party shall pay such amount to the indemnified party; (ii) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action or proceeding; and (iii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or entitledproceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action or claiming to be entitled to be indemnified, pursuant to proceeding is greater that the provisions amount of Section 6.02 or Section 6.03, Indemnitor such provisionsthe proposed settlement.
(b) An Indemnitee shall give written Notice of Claim days after the Indemnitee has knowledge Any payment made to or on behalf of any claim (including a Third-indemnified party Claimshall be increased to such amount as will, as hereinafter defined) which an Indemnitee has determined has given or could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise after taking into account all Taxes imposed with respect to the claim. The Notice accrual or receipt of Claim shall state such payment (as the nature of the claimsame may be increased pursuant this sentence), equal the amount of the Loss, if known, and payment otherwise due without considering the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time taxes payable by such party with respect thereto and an Indemnitee may make as a claim hereunder even where the full amount result of the Losses is not yet knownaccrual or receipt of such payment.
(c) If Upon payment by an Indemnitor does indemnified party to a third party of an amount subject to indemnification, the indemnifying party shall discharge its indemnification obligation by paying to the indemnified party an amount equal to the amount paid by the indemnified party to the third party; provided, however, Purchaser shall indemnify ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for any guarantees executed by said person guaranteeing an obligation of the Company.
(d) Any payment pursuant to this Article VI shall be made not notify in writing the Indemnitee within later than thirty (30) days after delivery receipt by the indemnifying party of written notice from the Notice of Claim indemnified party stating that an indemnifiable amount has been paid to a third party, and specifying the Indemnitor disputes such claim, amount thereof and the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor under this Article VI with respect to Losses arising from claims of any third party that are subject to the indemnification provisions provided for in this Article VI Third-party Claims conditions: the Indemnitee shall promptly deliver to the Notice of Claim in accordance with Section 6.04(b) to the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VI, the Indemnitor shall have the right to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Claim by appropriate proceedings at its sole cost and expense with counsel reasonably acceptable to the Indemnitee, in which case the Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
(e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitorpayment requested.
(f) Notwithstanding the foregoing, no compromise or settlement of any claim shall be made without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its Affiliates.
Appears in 1 contract
General Indemnification Provisions. (a) For the purposes of this Section 6.04, the term Indemnitee shall refer to the person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 6.02 or Section 6.03, Indemnitor such provisions.
(b) An Indemnitee shall give written Notice of Claim days after the Indemnitee has knowledge of any claim (including a Third-party Claim, as hereinafter defined) which an Indemnitee has determined has given or could give rise to a right of 3.1 All claims for indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of any third party claim shall be asserted and resolved as provided in this Section 3.
3.2 In the event that any third party claim or demand (a “Claim”) for which either party (“Indemnitor”) may be liable under this Agreement to indemnify the other party (“Indemnitee”) is asserted against or sought to be collected from Indemnitee, Indemnitee shall as promptly as practicable inform Indemnitor in writing of the Claim, and shall provide such right details of indemnification is claimed or arisesthe Claim (including amount, if known) and any documents relating thereto as are then available to it (the “Claim Notice”). The rights failure on the part of Indemnitee to give a Claim Notice promptly shall not relieve the Indemnitor of any party indemnification obligations hereunder unless, and then only to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of extent that, the Losses Indemnitor is not yet knownmaterially prejudiced thereby.
(c) If an 3.3 The Indemnitor does not notify in writing the Indemnitee within thirty (30) shall have 15 days after from delivery of the Claim Notice of Claim that (the Indemnitor disputes such claim, “Notice Period”) to inform Indemnitee whether or not it desires to conduct the amount of such claim shall be conclusively deemed a liability defence of the Claim, in which case Indemnitor hereunder. If the Indemnitor makes an objection in writingshall, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor under this Article VI with respect to Losses arising from claims of any third party that are subject to the indemnification provisions provided for in this Article VI Third-party Claims conditions: the Indemnitee shall promptly deliver to the Notice of Claim in accordance with Section 6.04(b) to the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VI, the Indemnitor shall have the right to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Claim by appropriate proceedings at its sole cost and expense with expense, have the right to defend Indemnitee by appropriate proceedings and by counsel reasonably acceptable to Indemnitee and shall have the Indemniteesole power to direct and control such defence; provided that Indemnitee may participate in such defence at its sole cost and expense.
3.4 Indemnitee shall not settle a Claim for which it is indemnified by Indemnitor unless Indemnitor does not defend Indemnitee against such Claim, in which case except that Indemnitee shall have the Indemnitor shall reasonably sole right to defend, settle or prosecute such Third-party compromise a Claim with respect to a final conclusion. The Indemnitee will have the which it has waived its right to employ its own counsel in any indemnification pursuant to this Agreement.
3.5 If Indemnitor does not serve notice under Section 3.3 during the Claim Period, Indemnitee may take such case, but the fees steps as are reasonable to defend itself against a Claim and expenses of to settle or compromise such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
3.6 Unless Indemnitee agrees (e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitor.
(f) Notwithstanding the foregoing, no compromise or settlement of any claim shall be made without the consent (agreement not to be unreasonably withheld, conditioned, ) Indemnitor may settle or delayed) compromise actions and consent to entry of judgments only on terms providing for the delivery of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor claimant or other third-party source, such compromise or settlement results in the full and plaintiff of a duly executed written unconditional release of Indemnitee from all claims liability in respect of such action.
3.7 During the Notice Period, Indemnitee may, without prejudicing its right to indemnification, take reasonable actions to preserve all and any rights with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable respect to the subject matter of a Claim notified to Indemnitor.
3.8 Indemnitee or its Affiliateswill provide all assistance and access to all documents and personnel reasonably required by Indemnitor in connection with the Defence of any Claim.
Appears in 1 contract
Sources: Trademark License Agreement (Avis Budget Group, Inc.)
General Indemnification Provisions. (a) For An Indemnified Party shall promptly give the purposes of this Section 6.04, the term Indemnitee shall refer to the person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 6.02 or Section 6.03, Indemnitor such provisions.
(b) An Indemnitee shall give Indemnifying Party written Notice of Claim days after the Indemnitee has knowledge notice of any claim (including a Third-party Claim, as hereinafter defined) matter which an Indemnitee Indemnified Party has determined has given or could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, stating the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known.
(c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor Indemnifying Party under this Article VI with respect to Losses arising from claims of any third party that are subject to the indemnification provisions provided for in this Article VI Third-party Claims ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, the Indemnitee Indemnified Party shall promptly deliver give the Indemnifying Party written notice of such Third Party Claim and shall permit the Indemnifying Party, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and at its expense. If, however, the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claims (subject to the Notice of Claim in accordance with Section 6.04(b) to limitations set forth herein), then the IndemnitorIndemnifying Party shall be entitled, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VIat its option, the Indemnitor shall have the right to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Third Party Claim by appropriate proceedings at its sole cost expense and expense with through counsel reasonably acceptable of its choice if it gives prompt notice of intention to do so to the Indemnitee, in which case Indemnified Party. In the Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have event the Indemnifying Party exercises its right to employ its own counsel in undertake the defense against any such caseThird Party Claim as provided above, but the fees Indemnified Party shall cooperate with the Indemnifying Party in such defense and expenses of such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in its attorneys and accountants all books and records of possession or under its control relating thereto as is reasonably required by the Indemnitor relating to Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third-party Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
(e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses make available to it all such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim, except the settlement thereof which are different from or additional to those available to involves the Indemnitor; (vi) payment of money only and for which the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond Indemnified Party is totally indemnified by the scope Indemnifying Party, may be settled by the Indemnifying Party without the written consent of the indemnity provisions in this Article VI; or Indemnified Party (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitor.
(f) Notwithstanding the foregoing, no compromise or settlement of any claim which consent shall be made without the consent (not to be unreasonably withheld). Similarly, conditioned, or delayed) no Third Party Claim which is being defended in good faith by the Indemnifying Party shall be settled by the Indemnified Party without the written consent of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its AffiliatesIndemnifying Party (which consent shall not be unreasonably withheld).
Appears in 1 contract
Sources: Merger Agreement (Diagnostic Retrieval Systems Inc)
General Indemnification Provisions. (a) For the purposes of this Section 6.04, the term Indemnitee shall refer to the person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 6.02 or Section 6.03, Indemnitor such provisions.
(b) An Indemnitee shall give written Notice of Claim days after the Indemnitee has knowledge of any claim (including a Third-party Claim, as hereinafter defined) which an Indemnitee has determined has given or could give rise to a right of 3.1 All claims for indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of any third party claim shall be asserted and resolved as provided in this Section 3.
3.2 In the event that any third party claim or demand (a “Claim”) for which either party (“Indemnitor”) may be liable under this Agreement to indemnify the other party (“Indemnitee”) is asserted against or sought to be collected from Indemnitee, Indemnitee shall as promptly as practicable inform Indemnitor in writing of the Claim, and shall provide such right details of indemnification is claimed or arisesthe Claim (including amount, if known) and any documents relating thereto as are then available to it (the “Claim Notice”). The rights failure on the part of any party Indemnitee to give a Claim Notice promptly shall not relieve the Indemnitor of any. indemnification or other remedies obligations hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto unless, and an Indemnitee may make a claim hereunder even where then only to the full amount of extent that, the Losses Indemnitor is not yet knownmaterially prejudiced thereby.
(c) If an 3.3 The Indemnitor does not notify in writing the Indemnitee within thirty (30) shall have 15 days after from delivery of the Claim Notice of Claim that (the Indemnitor disputes such claim, “Notice Period”) to inform Indemnitee whether or not it desires to conduct the amount of such claim shall be conclusively deemed a liability defence of the Claim, in which case Indemnitor hereunder. If the Indemnitor makes an objection in writingshall, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor under this Article VI with respect to Losses arising from claims of any third party that are subject to the indemnification provisions provided for in this Article VI Third-party Claims conditions: the Indemnitee shall promptly deliver to the Notice of Claim in accordance with Section 6.04(b) to the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VI, the Indemnitor shall have the right to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Claim by appropriate proceedings at its sole cost and expense with expense, have the right to defend Indemnitee by appropriate proceedings and by counsel reasonably acceptable to Indemnitee and shall have the Indemniteesole power to direct and control such defence; provided that Indemnitee may participate in such defence at its sole cost and expense.
3.4 Indemnitee shall not settle a Claim for which it is indemnified by Indemnitor unless Indemnitor does not defend Indemnitee against such Claim, in which case except that Indemnitee shall have the Indemnitor shall reasonably sole right to defend, settle or prosecute such Third-party compromise a Claim with respect to a final conclusion. The Indemnitee will have the which it has waived its right to employ its own counsel in any indemnification pursuant to this Agreement.
3.5 If Indemnitor does not serve notice under Section 3.3 during the Claim Period, Indemnitee may take such case, but the fees steps as are reasonable to defend itself against a Claim and expenses of to settle or compromise such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
3.6 Unless Indemnitee agrees (e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitor.
(f) Notwithstanding the foregoing, no compromise or settlement of any claim shall be made without the consent (agreement not to be unreasonably withheld, conditioned, ) Indemnitor may settle or delayed) compromise actions and consent to entry of judgments only on terms providing for the delivery of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor claimant or other third-party source, such compromise or settlement results in the full and plaintiff of a duly executed written unconditional release of Indemnitee from all claims liability in respect of such action.
3.7 During the Notice Period, Indemnitee may, without prejudicing its right to indemnification, take reasonable actions to preserve all and any rights with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable respect to the subject matter of a Claim notified to Indemnitor.
3.8 Indemnitee or its Affiliateswill provide all assistance and access to all documents and personnel reasonably required by Indemnitor in connection with the Defence of any Claim.
Appears in 1 contract
General Indemnification Provisions. (a) For the purposes of this Section 6.048.2, the term Indemnitee “Indemnitee” shall refer to the person indemnified, Parent Indemnitee indemnified or entitled, or claiming to be entitled entitled, to be indemnified, indemnified pursuant to the provisions of Section 6.02 or Section 6.038.1, Indemnitor such provisionsand the term “Indemnitors” shall refer to the former Company Participating Preferred Shareholders.
(b) An The Indemnitee shall promptly give written Notice of Claim days after the Indemnitee has knowledge Shareholders’ Representative notice of any claim (including a Third-party Claim, as hereinafter defined) matter which an the Indemnitee has determined has given or could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claimAgreement (a “Claim”), stating the amount of the LossLosses (whether actual or reasonably estimated), if known, and the method of computation thereof, all with reasonable particularity thereof and containing a reference to the basis for the Claim and shall specify the provision or provisions of this Purchase Agreement under which the Claim is asserted, in respect each case with reasonable particularity. Failure to give timely notice of which such right of indemnification is claimed or arises. The rights of any party a matter that may give rise to indemnification or other remedies hereunder will a Claim shall not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known.
(c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon affect the rights of the respective parties with respect Indemnitee to collect such claimClaim from the Indemnitors except to the extent that it materially adversely affects the Indemnitor’s ability to defend such Claim against a third party. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor the Indemnitors under this Article VI VIII with respect to Losses arising from claims Claims of any third party that are subject to the indemnification provisions provided for in this Article VI VIII (“Third-party Claims Party Claims”) shall be governed by the following additional terms and conditions: :
(i) if the Indemnitee shall promptly deliver to the Notice receive notice of Claim in accordance with Section 6.04(b) to the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VIany Third-Party Claim, the Indemnitor Indemnitee shall have give the right to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) Shareholders’ Representative prompt notice of such Third-party Party Claim by appropriate proceedings and shall permit the Shareholders’ Representative, at its sole cost and expense with counsel reasonably acceptable option, to assume the Indemnitee, in which case the Indemnitor shall reasonably settle or prosecute defense and/or management of such Third-party Party Claim at the Indemnitors’ expense and through counsel of its choice if the Shareholders’ Representative gives prompt notice of its intention to a final conclusion. The do so to the Indemnitee will have and does so promptly thereafter;
(ii) if the Shareholders’ Representative exercises its right to employ undertake the defense and/or management of any such Third-Party Claim, the Indemnitee shall cooperate with the Shareholders’ Representative in such defense and/or management and make available to the Shareholders’ Representative all witnesses, pertinent records, materials and information in the Indemnitee’s possession or under its own counsel control relating thereto as is reasonably required by the Shareholders’ Representative;
(iii) if the Shareholders’ Representative does not exercise its right to assume the defense and/or management of any Third-Party Claim as provided above, the Indemnitee may, directly or indirectly, conduct the defense and/or management of any such Third-Party Claim in any such case, but the fees manner it reasonably may deem appropriate and expenses of such counsel shall be at the expense of Indemnitors, for which the Indemnitee except as set forth may seek reimbursement from the Escrow Account, and the Shareholders’ Representative shall cooperate with the Indemnitee in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall defense and/or management and make available to the Indemnitee all witnesses, pertinent records, materials and information in the Shareholders’ Representative’s possession or under its attorneys and accountants control relating thereto as is reasonably required by the Indemnitee;
(iv) the Shareholders’ Representative will not consent to the entry of any judgment or enter into any settlement with respect to a Third-Party Claim unless the judgment or proposed settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of an unconditional release from all books and records liability in respect of the Indemnitor relating to such Third-party Party Claim; and
(v) if the Shareholders’ Representative does not exercise its right to assume the defense and/or management of a Third-Party Claim, and as provided above, the parties hereto agree Indemnitee shall not consent to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense entry of any judgment or enter into any settlement with respect to such Third Party Claim unless the judgment or proposed settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to the Shareholder’s Representative of an unconditional release of the former Company Participating Preferred Shareholders from all liability in respect of such Third-party Party Claim.
(e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitor.
(f) Notwithstanding the foregoing, no compromise or settlement of any claim shall be made without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its Affiliates.
Appears in 1 contract
Sources: Combination Agreement (Ssa Global Technologies, Inc)
General Indemnification Provisions. (a) For the purposes of this Section 6.04Agreement, the term Indemnitee "Indemnitee" shall refer to the person Person or Persons indemnified, or entitled, or claiming to be entitled entitled, to be indemnified, pursuant to the provisions of Section 6.02 8.02 or Section 6.038.03, Indemnitor as the case may be, the term "Indemnitor" shall refer to the Person or Persons having the obligation to indemnify pursuant to such provisionsprovisions and "Losses" shall refer to the Sellers' Losses or the Purchaser's Losses, as the case may be.
(b) An Indemnitee shall give written Notice of Claim days after give, within fifteen calendar days, the Indemnitee has knowledge Indemnitor notice of any claim (including a Third-party Claim, as hereinafter defined) matter which an Indemnitee has determined has given or could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, stating the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto obligations and an Indemnitee may make a claim hereunder even where the full amount Liabilities of the Losses is not yet known.
(c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor under this Article VI with respect to Losses arising from claims of any third party that are subject to the indemnification provisions provided for in this Article VI Third-party Claims ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnitee shall receive notice of any Third Party Claim, the Indemnitee shall promptly deliver give the Indemnitor notice of such Third Party Claim within ten calendar days (provided, however, that failure to give such notice shall not preclude indemnification under this Article VII unless there is actual prejudice to the Notice rights of Claim in accordance with Section 6.04(bthe Indemnitor) to and shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VIat its expense. If, however, the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee hereunder against any Losses that may result from such Third Party Claims (subject to the limitations set forth herein), then the Indemnitor shall have the right be entitled, at its option, to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Third Party Claim by appropriate proceedings at its sole cost expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnitee within five calendar days; provided, however, if the Indemnitee shall determine that its interests conflict with those of the Indemnitor, the Indemnitee shall be entitled to be represented at the Indemnitee's expense by separate counsel of its -30- choice and to participate in the defense of any such Third Party Claim. In the event the Indemnitor exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with counsel the Indemnitor in such defense and make available to the Indemnitor, at the Indemnitor's expense, all witnesses, pertinent records, materials and information in the Indemnitee's possession or under the Indemnitee's control relating thereto as is reasonably acceptable required by the Indemnitor. Similarly, in the event the Indemnitee is, directly or indi rectly, conducting the defense against any such Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to the Indemnitee, at the Indemnitor's expense, all such witnesses, records, materials and information in the Indemnitor's possession or under the Indemnitor's control relating thereto as is reasonably required by the Indemnitee. No such Third Party Claim, except the settlement thereof that involves the payment of money only and for which case the Indemnitee is released by the third party claimant and is totally indemnified by the Indemnitor, may be settled by the Indemnitor without the written consent of the Indemnitee, which consent shall not be unreasonably withheld; provided, however, that if a Third Party Claim is brought that relates in part to matters for which indemnification pursuant to this Agreement may be available and in part to matters for which such indemnification may not be available, a party may settle any segregable portion of such Third Party Claim as to which such indemnification may not be available. Similarly, no Third Party Claims that is being defended in good faith by the Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of settled by the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed without the written consent of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
(e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes provided, however, that, if a Third Party Claim is brought that relates in part to matters for which indemnification pursuant to this Agreement may be available and in part to matters for which such Third- indemnification may not be available, a party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and may settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at any segregable portion of such fees and expenses reasonably related Third Party Claim s to matters covered by the indemnity provisions contained in Article VI will which such indemnification may not be borne by the Indemnitoravailable.
(f) Notwithstanding the foregoing, no compromise or settlement of any claim shall be made without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its Affiliates.
Appears in 1 contract
General Indemnification Provisions. (a) For the purposes of this Section 6.048.4, the term Indemnitee “Indemnitee” shall refer to the person Person or Persons indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 6.02 8.1 or Section 6.038.2, Indemnitor as the case may be; the term “Indemnitor” shall refer to the Person or Persons having the obligation to indemnify pursuant to such provisions.
(b) An Indemnitee shall promptly give the Indemnitor written Notice notice (provided that the failure to promptly give notice shall relieve the Indemnitor of Claim days after its indemnification obligations hereunder only to the Indemnitee has knowledge extent, if any, that it is materially prejudiced thereby) of any claim (including a Third-party Claim, as hereinafter defined) matter which an Indemnitee has determined has given or could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim If an Indemnitee shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights receive notice of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known.
(c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor under this Article VI with respect to Losses arising from claims of any third party that are is subject to the indemnification provisions provided for in this Article VI Third-party Claims conditions: IX (“Third Party Claims”) the Indemnitee shall give the Indemnitor prompt written notice (“Notice”) of such Third Party Claim (provided that the failure to promptly deliver give such Notice shall relieve the Indemnitor of its indemnification obligations hereunder only to the Notice of Claim in accordance with Section 6.04(b) to extent, if any, that it is materially prejudiced thereby). The Indemnitee shall permit the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VIat its option, the Indemnitor shall have the right to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Claim by appropriate proceedings at its sole cost and expense with counsel be reasonably acceptable to the Indemnitee) if it gives written notice of its intention to do so to the Indemnitee within 20 days after its receipt of the Notice. After notice from the Indemnitor to the Indemnitee of the Indemnitor’s election to assume the defense of such Third-Party Claim, the Indemnitor will not, so long as it diligently conducts such defense, be liable to the Indemnitee for any fees of other counsel or any other expenses with respect to the defense of such Third-Party Claim, in which each case subsequently incurred by the Indemnitee in connection with the defense of such Third-Party Claim, other than reasonable costs of investigation; provided, however, if the Indemnitee reasonably believes that counsel chosen by the Indemnitor would have a conflict of interest or if one or more defenses exist for the Indemnitee and not for the Indemnitor, the Indemnitee shall have the right, at the Indemnitor’s expense, to be represented by counsel of its own choosing in addition to counsel chosen by the Indemnitor. In the event the Indemnitor exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnitor. In the event that the Indemnitor shall reasonably settle elect not to undertake such defense, or prosecute within a reasonable time after Notice of any such Third-party Claim claim from the Indemnitee shall fail to a final conclusion. The defend, the Indemnitee will (upon further written notice to the Indemnitor) shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
(e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, undertake the defense, compromise and or settlement of any Third-party Claim that (i) seeks as a remedy an injunction such claim, by counsel or other equitable representatives of its own choosing, on behalf of and for the account and risk of the Indemnitor (subject to the right of the Indemnitor to assume the defense of such claim at any reasonable time prior to settlement, compromise or non-monetary relief final determination thereof). In the event the Indemnitee is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to it all such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnitee; (ii) . Except for the settlement of a Third Party Claim which may act as an adverse involves the payment of money only and binding precedent upon for which the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between is totally indemnified by the Indemnitor, no Third Party Claim may be settled by the Indemnitor and Indemnitee; (v) without the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope prior written consent of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, An Indemnitee may not settle or compromise a Third Party Claim without the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender prior written consent of the defense of the Third-party ClaimIndemnitor, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee provided that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitor.
(f) Notwithstanding the foregoing, no compromise or settlement of any claim shall be made without the consent (not to be unreasonably withheld, conditioned, or delayed) of given the Indemnitee unless all Losses related to such claim are paid in full by the written notice that Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against will fully indemnify the Indemnitee and its affiliates by the party asserting for such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its AffiliatesThird Party Claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Claims Evaluation Inc)
General Indemnification Provisions. (a) For the purposes of this Section 6.04, the term Indemnitee shall refer to the person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 6.02 or Section 6.03, Indemnitor such provisions.
(b) An Indemnitee shall give written Notice of Claim days after the Indemnitee has knowledge of any claim (including a Third-party Claim, as hereinafter defined) which an Indemnitee has determined has given or could give rise to a right of Any Person seeking indemnification under this Purchase Agreement. No failure to Article VI (an "INDEMNIFIED PARTY") shall give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise prompt notice to the claim. The Notice of Claim shall state party or parties from whom such indemnification is sought (the nature of the claim"INDEMNIFYING PARTY"), stating the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto obligations and an Indemnitee may make a claim hereunder even where the full amount Liabilities of the Losses is not yet known.
(c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor Indemnifying Party under this Article VI with respect to Losses arising from claims of any third party that which are subject to the indemnification provisions provided for in this Article VI Third-party Claims ("THIRD PARTY CLAIMS") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, the Indemnitee Indemnified Party shall promptly deliver give the Indemnifying Party notice of such Third Party Claim within 30 days of the receipt by the Indemnified Party of such notice; PROVIDED, HOWEVER, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the Notice of Claim in accordance with Section 6.04(b) to extent the Indemnitor, Indemnifying Party is materially prejudiced by such failure and upon shall not relieve the written agreement of the Indemnitor Indemnifying Party from any other obligation or liability that it is obligated may have to indemnify any Indemnified Party otherwise than under this Article VI. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnitor Indemnifying Party shall have the right be entitled to assume and control the defense (including all proceedings on appeal of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within 15 days of the receipt of such notice from the Indemnified Party; PROVIDED, HOWEVER, that if there exists or for review which counsel is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable good faith judgment of the Indemnified Party for the defendant same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall deem appropriate) of such Third-party Claim by appropriate proceedings at be entitled to retain its sole cost and expense with counsel reasonably acceptable to the Indemniteeown counsel, in each jurisdiction for which case the Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own Indemnified Party determines counsel in any such caseis required, but the fees and expenses of such counsel shall be at the expense of the Indemnitee except Indemnifying Party. In the event the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as set forth provided above, the Indemnified Party shall cooperate with the Indemnifying Party in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall defense and make available to the Indemnitee Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and its attorneys and accountants all books and records of information in the Indemnitor Indemnified Party's possession or under the Indemnified Party's control relating to thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third-party Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
(e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those make available to the Indemnitor; (vi) Indemnified Party, at the Indemnitee Indemnifying Party's expense, all such witnesses, records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as is reasonably concludes that required by the Indemnified Party. No such Third- party Third Party Claim involves to a significant extent matters beyond may be settled by the scope Indemnifying Party without the written consent of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the IndemnitorIndemnified Party.
(f) Notwithstanding the foregoing, no compromise or settlement of any claim shall be made without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its Affiliates.
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General Indemnification Provisions. (a) For the purposes of this Section 6.04Section, the term Indemnitee "Indemnitee" shall refer to the person or persons indemnified, or entitled, or claiming to be entitled entitled, to be indemnified, pursuant to the provisions of Section 6.02 this Article X, as the case may be; and the term "Indemnitor" shall refer to the person having the obligation to indemnify pursuant to this Article X. The term "Losses" is not limited to matters asserted by third parties, but includes Losses incurred or Section 6.03sustained by an Indemnitee in the absence of third party claims, Indemnitor such provisionsand payments by the Indemnitee shall not be a condition precedent to recovery. Amounts payable by the Seller Parties to Buyer in respect of Losses for which Buyer is entitled to indemnification hereunder shall be payable by the Seller Parties as incurred by Buyer. Amounts payable by Buyer with respect to Losses for which ▇▇▇▇▇▇ ▇▇▇▇, Sopilote or Shareholder are entitled to indemnification shall be paid by Buyer as incurred.
(b) An Indemnitee shall give written Notice of Claim days after the Indemnitee has knowledge Indemnitor notice of any claim (including a Third-party Claim, as hereinafter defined) matter which an Indemnitee has determined has given or could give rise to a right of indemnification under this Purchase Agreement. No failure to give Agreement as soon as practicable after the Indemnitee becomes aware of such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claimmatter, stating the amount of the LossLosses, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known.
(c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor under this Article VI with respect to Losses arising from claims of any third party that are subject to the indemnification provisions provided for in this Article VI Third-party Claims ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnitee shall receive notice of any Third Party Claim, the Indemnitee shall give the Indemnitor notice of such Third Party Claim as promptly deliver to as practicable (and in any event within fifteen (15) calendar days after the Notice service of Claim in accordance with Section 6.04(bthe citation or summons) to and shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and upon the written agreement of the Indemnitor at its expense; provided that it such counsel is obligated reasonably acceptable to indemnify under this Article VI, the Indemnitee. The Indemnitor shall have the right also be entitled, at its option, to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Third Party Claim by appropriate proceedings at its sole cost cost, risk and expense with and through counsel reasonably acceptable of its choice if it gives notice, within fifteen (15) calendar days after receiving notice of such claim from the Indemnitee, of his or its intention to do so to the Indemnitee, in which case unless the named parties to such action or proceeding include both the Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
(e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through has been advised in writing by counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are may be one or more legal defenses available to it which such Indemnitee that are different from or additional to those available to the Indemnitor; (vi) . If the Indemnitor exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor, at the Indemnitor's expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably concludes that required by the Indemnitor. Similarly, in the event the Indemnitee is, directly or indirectly, conducting the defense against any such Third- party Claim involves Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to a significant extent matters beyond the scope of the indemnity provisions it all such witnesses, records, materials and information in this Article VI; its possession or (vii) the sett effect on under its control relating thereto as is reasonably required by the Indemnitee. AdditionallyNo such Third Party Claim, except the settlement thereof which involves the payment of money only and for which the Indemnitee is fully indemnified by the Indemnitor, may be settled by the Indemnitor without the written consent of the Indemnitee, which consent will lose its right to contest, defend, litigate and settle not be unreasonably withheld. If the Third-party Claim if (A) it Indemnitor fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct assume the defense of such Third- at portion Third Party Claim within fifteen (15) calendar days after receipt of the notice thereof, the Indemnitee against which such fees and expenses reasonably related claim has been asserted will (upon delivering notice to matters covered by the indemnity provisions contained in Article VI will be borne by such effect to the Indemnitor.
(f) Notwithstanding have the foregoingright to undertake, no at the Indemnitor's cost and expense, the defense, compromise or settlement of any such claim shall be made without on behalf of and for the consent (not to be unreasonably withheld, conditioned, or delayed) account and risk of the Indemnitee unless all Losses related to Indemnitor and the Indemnitor will be bound by any determination made in such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee and its affiliates effected by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its AffiliatesIndemnitee.
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General Indemnification Provisions. (a) For the purposes of this Section 6.049.4, the term Indemnitee “Indemnitee” shall refer to the person Person or Persons indemnified, or entitled, or claiming to be entitled entitled, to be indemnified, pursuant to the provisions of Section 6.02 9.2 or Section 6.039.3, Indemnitor as the case may be; the term “Indemnitor” shall refer to the Person having the obligation to indemnify pursuant to such provisions; and “Losses” shall refer to Seller Losses or Buyer Losses, as the case may be.
(b) An Within a reasonable time following the determination thereof, an Indemnitee shall give the Indemnitor written Notice of Claim days after the Indemnitee has knowledge notice of any claim (including a Third-party Claim, as hereinafter defined) matter which an such Indemnitee has determined has given or could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, Agreement stating the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arisesarises (subject to the last sentence of this subsection). The rights obligations and Liabilities of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known.
(c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law.
(d) The obligations and liabilities of an Indemnitor under this Article VI IX with respect to Losses arising from claims claims, assertions, events or proceedings of any third party that (including claims by any assignee or successor of the Indemnitee or any Governmental Authority), which are subject to the indemnification provisions provided for in this Article VI Third-party Claims IX (“Third Party Claims”) shall be governed by and be subject to the following additional terms and conditions: the If any Indemnitee shall promptly deliver to give the Notice Indemnitor written notice of such Third Party Claim in accordance with Section 6.04(b) to and shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and upon the written agreement of at its expense. If the Indemnitor that it is obligated acknowledges in writing its obligation to indemnify under this Article VIthe Indemnitee hereunder against any Loss (without limitation) that may result from such Third Party Claim, then the Indemnitor shall have the right be entitled, at its option, to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of against such Third-party Third Party Claim by appropriate proceedings at its sole cost expense and expense with counsel reasonably acceptable to the Indemnitee, in which case the Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim.
(e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosingchoice if it gives written notice of its intention to do so to the Indemnitee within fifteen (15) calendar days of the receipt of notice of such Third Party Claim from Indemnitee, unless, in the defense, compromise and settlement reasonable opinion of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against counsel for the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims , there is a conflict or demands; (iii) involves any criminal Proceeding; (iv) creates a potential conflict of interest between the Indemnitee and the Indemnitor and Indemnitee; (v) in such Action, in which event the Indemnitee reasonably concludes that there are defenses available shall be entitled to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in this Article VI; or (vii) the sett effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct direct the defense of such Third- at portion Action with separate counsel of such its choice reasonably acceptable to the Indemnitor. The reasonable fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will of any such separate counsel shall be borne by the Indemnitor. In the event that the Indemnitor exercises its right to undertake the defense against any Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor, at Indemnitor’s expenses, all witnesses, pertinent records, materials and information in its possession or under its control reasonably relating thereto as is required by the Indemnitor. Similarly, in the event the Indemnitee is, directly or indirectly, conducting the defense against any Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to it all witnesses, pertinent records, materials and information in its possession or under its control reasonably relating thereto as is reasonably required by the Indemnitee. No such Third Party Claim, except the settlement thereof which involves (i) the payment of money only either by a party other than the Indemnitee or for which the Indemnitee is totally indemnified (without limitation) by the Indemnitor, (ii) the unconditional release from all related liability of the Indemnitee, (iii) the imposition of no condition or limitation on Indemnitee’s on-going business, and (iv) no adverse impact on Indemnitee’s reputation, may be settled by the Indemnitor without the written consent of the Indemnitee. In the event that an Indemnitee reasonably determines, and gives notification to the Indemnitor, that the failure to resolve a Third Party Claim is having a Material Adverse Effect on the Indemnitee’s on-going business, and as a result the Indemnitee wishes to propose a settlement of the Third Party Claim and the third party will unconditionally release the Indemnitor from any and all Liabilities relating to or arising from such Third Party Claim, then the Indemnitor shall not unreasonably withhold its consent to such settlement; provided, however, that this provision shall not apply if the Indemnitee is entitled to direct the defense of such Action pursuant to this Section and the Indemnitee has exercised such right. If the Indemnitor does not consent to such settlement, the Indemnitee may settle the Third Party Claim on the terms proposed without discharging the Indemnitor from its liability hereunder with respect to such Third Party Claim. The foregoing notwithstanding, the failure of any Indemnitee to give any notice required to be given hereunder shall not affect such Indemnitee’s right to indemnification hereunder except to the extent the Indemnitor from whom such indemnity is sought shall have been actually and materially prejudiced in its ability to defend the claim or action for which such indemnification is sought by reason of such failure.
(fc) Notwithstanding the foregoing, no compromise or settlement of any claim Payment by an Indemnitee to a third party with respect to a Loss shall be made without the consent (not affect such Indemnitee’s rights to be unreasonably withheld, conditioned, or delayed) of the Indemnitee unless all Losses related indemnification pursuant to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to the Indemnitee or its Affiliatesthis Article IX.
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