Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Epic Energy Resources, Inc.), Stock Purchase Agreement (Epic Energy Resources, Inc.)
Procedures for Indemnification. As used herein, an "“Indemnified Party" ” means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicableARTICLE 10, and the term "“Indemnifying Party" ” means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicableARTICLE 10. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third “Third-Party Claim"”) of which it has knowledge, for which such Indemnified Indemnifying Party is entitled to indemnification under this Article 11ARTICLE 10. In the case of a Third Third-Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Third-Party Claim at its own expense. In such case, case the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's ’s records and personnel relating to any such Third Third-Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Third-Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Third-Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's ’s expense. If the Indemnified Party assumes the defense of any such Third Third-Party Claim pursuant to this Section ARTICLE 10 and proposes to settle such claim Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Third-Party Claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mobilepro Corp), Asset Purchase Agreement (Mobilepro Corp)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys feesa) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to An Indemnitee shall give the Indemnifying Party prompt notice of any matter that an Indemnitee has determined has given, or reasonably anticipates could give rise to, a right of indemnification under this Agreement (other than a Third Party Claim which shall be governed by Section 7.04(b)), within 30 days of such determination, stating the amount of the Indemnifiable Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations, except to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure.
(b) If an Action is made against a B/E Indemnitee or a KLX Indemnitee (each, an “Indemnitee”) by any Person who is not a Party or otherwise a member of a Group of a Party (a “Third Party Claim”) as to which such Indemnitee is or may be entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the other Party which is or may be required pursuant to this ARTICLE VII or pursuant to any Ancillary Agreement or Continuing Arrangement to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 30 days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that the failure to provide notice of any such Third Party Claim pursuant to this sentence shall not release the Indemnifying Party from any of its obligations except to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly after the Indemnitee’s receipt thereof (and in any event within fifteen (15) Business Days), copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim.
(c) Unless there is a reasonable probability that a Third Party Claim may materially and adversely affect the applicable Indemnitee, its Subsidiaries or Affiliates, other than as a result of money damages or other money payments, an Indemnifying Party shall be entitled (but shall not be required) to assume and control the defense of any such Third Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel that is reasonably acceptable to the applicable Indemnitees, if it gives notice of its intention to do so to the applicable Indemnitees within 30 days of the receipt of notice of the Third Party Claim from such Indemnitees. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, at its own expense and, in any event, shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent Information and materials in such Indemnitee’s possession or any claim, action, suit, demand, assessment, investigation, arbitration under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party.
(d) If an Indemnifying Party cannot pursuant to Section 7.04(c) or other proceeding by or in respect of elects not to assume responsibility for defending a third party (a "Third Party Claim", or fails to notify an Indemnitee of its election as provided in Section 7.04(c), such Indemnitee may defend such Third Party Claim at the cost and expense of the Indemnifying Party. If the Indemnitee is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnitee in such defense and make available to the Indemnitee, at the Indemnifying Party’s expense, all witnesses, pertinent Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee.
(e) If the Indemnifying Party has assumed the defense of which it has knowledgethe Third Party Claim in accordance with the terms of this Agreement, for which such Indemnified no Indemnitee may settle or compromise any Third Party is entitled to indemnification under this Article 11. Claim without the consent of the Indemnifying Party.
(f) In the case of a Third Party Claim, the no Indemnifying Party will have the right shall consent to direct, through counsel entry of its own choosing, the defense any judgment or enter into any settlement of any such the Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified PartyIndemnitee; provided, which however, that consent will from the Indemnitee shall not be unreasonably withheldrequired if such settlement contains a full and unconditional release of the Indemnitee and does not permit any injunction, delayed declaratory judgment, other order or conditioned. If other non-monetary relief (including, for the Indemnifying avoidance of doubt, debarment) to be entered, directly or indirectly, against any Indemnitee.
(g) Except as may otherwise be specifically provided for in the Ancillary Agreements and except as set forth in Section 10.02(d) or Section 10.02(f) hereof, the indemnification provisions of this ARTICLE VII shall be the sole and exclusive remedy of the Parties for any failure by the other Party fails to defend perform and comply with any covenants and agreements in this Agreement and any other dispute, controversy or fails to prosecute claim (whether arising in contract, tort or withdraws from such defenseotherwise) that may arise out of or relate to, then or arise under or in connection with, this Agreement or any Ancillary Agreement or Continuing Arrangement, or the Indemnified Party will have transactions contemplated hereby or thereby (including all actions taken in furtherance of the right to undertake the defense transactions contemplated hereby or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim thereby on or prior to a final judgment thereon the Effective Time), between or to forgo appeal with respect theretoamong any member of the B/E Group, then on the Indemnified Party will give one hand, and any member of the Indemnifying Party prompt written notice thereof and KLX Group, on the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimother hand.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (KLX Inc.), Separation and Distribution Agreement (KLX Inc.)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party Party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 10.2 or 11.3 10.3 hereof, as applicable, and the term "Indemnifying Party" means the party Party who is obligated to provide indemnification under Section 11.02 10.2 or 11.3Section 10.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 1110. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Epic Energy Resources, Inc.), Membership Interest Purchase Agreement (Epic Energy Resources, Inc.)
Procedures for Indemnification. As used herein, an "Indemnified Party" means (a) Whenever a party seeking Claim shall arise for indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by resulting from or in respect of connection with a Claim by a third party (a "Third “Third-Party Claim"”) of which it has knowledge(other than under Section 9.02(b)(iv)), for which such Indemnified Party is the Person entitled to indemnification under this Article 11(the “Indemnified Party”) shall promptly notify the Party from which indemnification is sought (the “Indemnifying Party”) of such Claim and, when known, the facts constituting the basis of such Claim; provided, that failure to notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party has been materially prejudiced by such failure. In the case Following receipt of a Third notice of any such Third-Party Claim, and unless (i) the assumption of such defense by the Indemnifying Party would be inappropriate due to a conflict of interest, (ii) such Third-Party Claim (or the facts or allegations related to such Third-Party Claim) involves criminal allegations or seeks equitable or injunctive relief, (iii) the Indemnifying Party does not have the resources to satisfy such Third-Party Claim or (iv) such Third-Party Claim, if adversely determined, could reasonably be expected to materially adversely affect the business or reputation of the Indemnified Party or its Affiliates, the Indemnifying Party will shall have the right option, at its cost and expense, to directassume the defense of such Third-Party Claim and to retain counsel (not reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, through and the Indemnifying Party shall not be liable to the Indemnified Party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of its own choosingsuch Claim, other than reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. The Indemnified Party shall have the option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party) with counsel not reasonably objected to by the Indemnifying Party and counsel for each party shall, to the extent consistent with such counsel’s professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Third-Party Claim with respect to which the Indemnifying Party has assumed the defense in accordance with this Section 9.05(a), the defense Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such Third consent not to be unreasonably withheld, conditioned or delayed. An Indemnifying Party Claim at its own expenseshall not be liable for any settlement, compromise or judgment not made in accordance with the preceding sentence.
(b) Buyer shall promptly and diligently defend, prosecute or settle the matters described in Section 9.02(b)(iv) (including the defense of any members of the Seller Indemnified Group that are defendants or respondents with respect to such matters). In such caseIf Buyer’s counsel shall have advised Buyer in writing, in which case Buyer shall deliver a copy to the Indemnified Party, or if the Indemnified Party reasonably believes, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel, the Indemnified Party may participate in retain its own counsel with respect to such defense, but in such case defense and Buyer shall pay the reasonable attorneys’ fees and expenses of the Indemnified Party will be paid by the counsel for such Indemnified Party. The Indemnified Party will promptly provide Buyer shall obtain the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, which consent will shall not be unreasonably withheld, delayed or conditioned. If , before entering into or making (or allowing the Indemnifying Party fails Companies to defend enter into or fails to prosecute make) any settlement or withdraws from compromise of the matters described in Section 9.02(b)(iv) if (i) such defensesettlement or compromise does not include a full release of the Indemnified Party, then (ii) such settlement or compromise includes any non-monetary remedy binding on the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If (iii) the Indemnified Party assumes reasonably believes that Buyer will not have the defense ability to satisfy fully its obligations pursuant to Section 9.02(b)(iv) at the time of such Third settlement or compromise.
(c) After the Closing Date, Seller and Buyer shall grant each other (or their respective designees), and Buyer shall cause the Companies to grant to Seller (or its designees), access at all reasonable times to all of the information, books and records relating to the Companies in its possession, and shall afford such party the right (at such party’s expense) to take extracts therefrom and to make copies thereof, to the extent reasonably necessary to implement the provisions of, or to investigate or defend any Third-Party Claim pursuant Claims; provided that no such party shall be entitled to this Section and proposes to settle such claim prior make available any information, books or records, the disclosure of which would cause a waiver of any applicable privilege or breach of an obligation of confidentiality to a final judgment thereon third-party and either party may make access to such information, books and records conditioned upon execution and delivery of a confidentiality agreement reasonably satisfactory to the party requesting disclosure. Further, after the Closing, Buyer shall cause the Companies to grant to Seller (or to forgo appeal with respect thereto, then its designees) the Indemnified Party will give the Indemnifying Party prompt written notice thereof access and the Indemnifying Party will have the right to participate take extracts and make copies described in the settlement or assume or reassume the defense of preceding sentence for such Third Party Claimother purposes as may be reasonably requested by Seller.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (US Power Generating CO), Purchase and Sale Agreement (Reliant Energy Inc)
Procedures for Indemnification. As used herein, an "Indemnified Party" means Whenever a party seeking indemnification claim shall arise for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11XI, the party entitled to indemnification (the "INDEMNIFIED PARTY") shall promptly notify the party from which indemnification is sought (the "INDEMNIFYING PARTY") of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten Business Days prior to the time any response to the asserted claim is required, if possible, and in any event within five Business Days following receipt of notice thereof. Failure to give such notice in a timely manner shall not release the Indemnifying Party from its obligations under Section 11.2, except to the extent that the Indemnifying Party is prejudiced by such failure. In the case event of any such claim for indemnification resulting from or in connection with a Third Party Claimclaim or Legal Proceeding by a third party, the Indemnifying Party will have may, at its sole cost and expense, assume the right defense thereof by written notice within 30 calendar days, using counsel that is reasonably satisfactory to directthe Indemnified Party (and whose fees shall be borne by the Indemnifying Party). If an Indemnifying Party assumes the defense of, through counsel of its own choosingand the full responsibility for paying or otherwise discharging, any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to take all steps necessary in the defense or thereof including the settlement of any such Third case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified Party Claim may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. In such caseThe Indemnifying Party, if it has assumed the defense of any claim or Legal Proceeding by a third party as provided herein, shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party may participate in to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such defense, but in such case the expenses third party of the Indemnified Party will be paid Party), or consent to the entry of any judgment that does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to a third party without the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimprior written consent, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will shall not be unreasonably withheld, delayed conditioned or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of delayed. The Indemnifying Party and the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent shall cooperate fully in all aspects of the Indemnified Partyany investigation, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article XI, including by providing the Indemnified Party will have the right other party with reasonable access to undertake the defense or settlement thereof, employees and officers (including as witnesses) and other information at the Indemnifying Party's expense. If So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party assumes shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of such Third Party Claim pursuant to this Section and proposes to settle any such claim prior to a final judgment thereon or to forgo appeal litigation in accordance with respect theretothe terms hereof, then the Indemnified Party will give may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party prompt and obtaining the prior written notice thereof consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the Indemnified Party may reasonably deem appropriate, and the Indemnifying Party will have promptly indemnify the right to participate Indemnified Party in accordance with the settlement or assume or reassume the defense provisions of such Third Party Claimthis Article XI.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Wix Filtration Media Specialists, Inc.), Stock and Asset Purchase Agreement (Dana Corp)
Procedures for Indemnification. As used herein, an The procedures for indemnification shall be as follows:
A. The party claiming the indemnification (the "Indemnified Party" means a Claimant") shall promptly give notice to the party seeking from whom indemnification for any Loss is claimed (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of any claim, whether between the parties or brought by a third party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If the claim relates to an action, suit or proceeding filed by a third party who is obligated against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to provide indemnification under Section 11.02 or 11.3Claimant.
B. Following receipt of notice from the Claimant of a claim, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice shall have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any eventmutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim. If the Claimant and the Indemnifying Party do not agree within said period (or any claimmutually agreed upon extension thereof), action, suit, demand, assessment, investigation, arbitration or other proceeding the Claimant may seek appropriate legal remedy.
C. With respect to any claim by or in respect of a third party (a "Third Party Claim") of as to which it has knowledge, for which such Indemnified Party the Claimant is entitled to indemnification under this Article 11. In the case of a Third Party Claimhereunder, the Indemnifying Party will shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may to participate in such defense, but in such case the expenses or assume control of the Indemnified Party will be paid by defense of such claim, and the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise Claimant shall cooperate fully with the Indemnifying Party in the defense or settlement of such Third Party ClaimParty, and the Indemnifying Party will reimburse the Indemnified Party subject to reimbursement for all its reasonable actual out-of-pocket costs and expenses incurred in providing such access, personnel and cooperationby the Claimant as the result of a request by the Indemnifying Party. Upon assumption If the Indemnifying Party elects to assume control of the defense of any such Third Party Claim by the Indemnifying Partythird-party claim, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will Claimant shall have the right to participate in the settlement defense of such claim at its own expense.
D. If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
E. If the Indemnifying Party does not elect to assume control or reassume otherwise participate in the defense of any third party claim, it shall be bound by the results obtained in good faith by the Claimant with respect to such Third Party Claimclaim.
F. The indemnification rights provided in Sections 10.2 and 10.3 shall extend to the shareholders, directors, officers, partners employees and representatives of the Claimant although for the purpose of the procedures set forth in this Section 10.4, any indemnification claims by such parties shall be made by and through the Claimant.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. As used hereinSubject to the following sentence, an "whenever a claim shall arise for indemnification under this Article 10A, the Indemnified Party" means Party shall promptly notify the Indemnifying Party of such claim within the period provided in Section 10.01 and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification under this Article 10A resulting from or in connection with any claim or Legal Proceeding by a party seeking indemnification for third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten (10) Business Days prior to the time any Loss (includingresponse to the asserted claim is required, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicableif possible, and in any event within five (5) Business Days following receipt of notice thereof. Notwithstanding the term "foregoing, in the case of claims for indemnification hereunder not arising in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall not submit such claims to the Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicableParty in increments aggregating less than $50,000. The Indemnified Party agrees Party’s failure to give timely notice or to furnish the Indemnifying Party prompt with any relevant facts in connection with any third party claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the Indemnifying Party and provided further that nothing contained herein shall extend the time limits set forth in Section 10.10 hereof. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof by written notice within ten (10) Business Days, using counsel that is reasonably satisfactory to the Indemnified Party, provided that any such exercise of the Indemnifying Party’s rights to take control of the defense and investigation of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (claim shall not be deemed a "Third Party Claim") waiver of which it has knowledge, for which the Indemnifying Party’s right to determine at a later date that such Indemnified Party third party claim is not entitled to indemnification under this Article 11. In the Agreement, in which case of a Third Party Claim, the Indemnifying Party will have may, in the right to direct, through counsel exercise of its own choosingsole discretion, determine not to continue to defend any such third party claim and any action taken by the Indemnifying Party in connection with such determination shall be undertaken in a manner so as not to materially prejudice the defense or settlement the rights of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise shall cooperate with the Indemnifying Party so as to minimize risk of any such prejudice. Each Indemnified Party shall use commercially reasonable efforts to mitigate Environmental Damages for which it seeks indemnification under this Article 10A. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to take all steps necessary in the defense thereof including the settlement of any case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the defense of any claim or Legal Proceeding by a third party as provided herein, shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such Third third party of the Indemnified Party), or consent to the entry of any judgment that does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party Claimand the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article 10A, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information, provided, that in each case, such access shall be given at reasonable times and upon reasonable notice and without undue interruption to such party’s business or personnel. So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any such claim or litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the Indemnified Party may reasonably deem appropriate, and the Indemnifying Party will reimburse promptly indemnify the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption accordance with the provisions of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim10A.03.
Appears in 2 contracts
Sources: Asset Purchase Agreement (NewPage Holding CORP), Asset Purchase Agreement (NewPage CORP)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a (a) The party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The 12 hereof (the “Indemnified Party Party”) agrees to give prompt notice to the Party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder; provided that the failure to notify the Indemnifying Party prompt written notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. The Indemnifying Party shall not be liable under this Section 12.2 for any settlement of Third Party Claims (as defined below) effected without its consent and in violation of Section 12.2(b) hereof.
(b) The Indemnifying Party shall be entitled to participate in the defense of any event, or claim asserted by any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party and arising from the breach of obligations under this Agreement and/or any other Transaction Agreement (a "“Third Party Claim"”) of which it has knowledgeand, for which such Indemnified Party is subject to the limitations set forth in this Section 12.2, shall be entitled to indemnification under this Article 11. In the control and appoint lead counsel for such defense, in each case at its expense, provided that prior to assuming control of a Third Party Claimsuch defense, the Indemnifying Party will must acknowledge that it would have the right to direct, through counsel of its own choosing, the defense or settlement of any an indemnity obligations for Loss resulting from such Third Party Claims as provided under this Section 12.2. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled or obligated to assume or maintain control of the defense of any Third Party Claim at its own expense. In such case, nor pay the fees and expense of counsel retained by the Indemnified Party may participate if (i) the Third Party Claim relates to or arises in such defenseconnection with any criminal proceeding, but action, indictment, allegation or investigation against the Indemnified Party and/or willful misconduct or gross negligence of the Indemnified Party, or (ii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in such case accordance with the expenses provisions of Section 12.2(b), the Indemnifying Party shall obtain the prior written consent of the Indemnified Party will (which shall not be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to unreasonably withheld or delayed) before entering into any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim.
(d) The Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ one law firm as separate counsel of its choice for such purpose. The reasonable fees and expenses of such separate counsel shall be borne by the Indemnified Party, provided that the Indemnifying Party shall not pay the reasonable fees and expenses of such separate counsel, (i) incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third Party Claim and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption is not otherwise required to assume control of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim, or (ii) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest.
(e) The Indemnified Party shall take all reasonable steps to avoid or mitigate its Losses upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Losses that are indemnifiable under this Agreement and/or any other Transaction Agreement, including taking all reasonable steps to enforce any claim for indemnification for such Losses under any contract with any third party (including any insurance coverage) that may cover any portion of such Losses.
Appears in 2 contracts
Sources: Joint Venture Framework Agreement (Photronics Inc), Joint Venture Framework Agreement (Photronics Inc)
Procedures for Indemnification. As used herein, an "(a) The party that may be entitled to indemnity hereunder (the “Indemnified Party" means a ”) shall give prompt notice to any party seeking indemnification for any Loss obligated to give indemnity hereunder (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means ”) of the party who is obligated to provide indemnification under Section 11.02 assertion of any claim, or 11.3the commencement of any suit, as applicableaction or proceeding in respect of which indemnity may be sought hereunder. The Any failure on the part of any Indemnified Party agrees to give the notice described in this Section 11.6(a) shall relieve the Indemnifying Party prompt written of its obligations under this Article XI only to the extent that such Indemnifying Party has been prejudiced by the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) days thereof) after the Indemnified Party’s receipt thereof, copies of any event, or any all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit, demand, assessment, investigation, arbitration suit or other proceeding by or in respect of a third party proceeding.
(a "Third Party Claim"b) of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the The Indemnifying Party will shall have the right but not the obligation to direct, through counsel of its own choosing, assume the defense or settlement of any such Third third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder, provided that (i) the Indemnified Party Claim shall at all times have the right, at its own or his option and expense. In , to participate fully therein, provided that such casedefense shall remain under the control of the Indemnifying Party, and, (ii) if the Indemnifying Party does not proceed diligently to defend the third-party claim, suit, action or proceeding within twenty (20) days after receipt of notice of such third-party claim, suit, action or proceeding, the Indemnified Party may participate in such defenseshall have the right, but in not the obligation, to undertake the defense at his expense of any such case the expenses of third-party claim, suit, action or proceeding.
(c) The Indemnifying Party shall not be required to indemnify the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating respect to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party amounts paid in the defense or settlement of such Third Party Claimany third-party suit, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such accessaction, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, proceeding or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is investigation entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party into without the written consent of the Indemnifying Party, provided that if the Indemnifying Party gives ten (10) days’ prior written notice to the Indemnified Party of a settlement offer which the Indemnifying Party desires to accept and to pay all Losses with respect thereto (“Settlement Notice”) and the Indemnified Party fails or refuses to consent to such settlement within ten (10) days after delivery of the Settlement Notice to the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If and such settlement otherwise complies with the provisions of this Section 11.6 the Indemnifying Party fails to defend or fails to prosecute or withdraws shall not be liable for Losses arising from such defensethird-party suit, then action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party, if such judgment or settlement imposes any obligation or liability upon the Indemnified Party will other than the execution, delivery or approval thereof and customary releases of claims with respect to the subject matter thereof.
(d) The Parties shall cooperate in defending any such third-party suit, action, proceeding or investigation, and the defending Party shall have reasonable access to the right books and records, and personnel in the possession or control of the other Party that are pertinent to undertake the defense or settlement thereof, at defense. The Indemnified Party may join the Indemnifying Party's expense. If Party in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of the indemnity granted to such Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimAgreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nuevo Energy Co), Stock Purchase Agreement (Nuevo Energy Co)
Procedures for Indemnification. As used hereinExcept as provided in Section 9.4:
(i) Any claim by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party by giving the party being indemnified (the “Indemnifying Party”) prompt written notice (a “Claim Notice”); provided, an "however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.1 shall not affect such Indemnified Party" ’s rights under this Section 9.1 except and only to the extent such failure materially prejudices the Indemnifying Party. Such Claim Notice shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) days after its receipt of such Claim Notice to respond in writing to such Direct Claim. During such thirty (30) day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such thirty (30) day period, the Indemnifying Party shall be deemed to have accepted such claim.
(ii) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Section 9.1 shall be determined: (i) by this Agreement; (ii) by a determination of a court of competent jurisdiction in accordance with Section 10.16; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party shall agree in writing (a party seeking indemnification for any Loss “Determination”). All amounts due to the Indemnified Party shall be paid within ten (including, but not limited to attorneys fees10) Business Days after such Determination pursuant to Section 11.2 or 11.3 hereof, as applicable9.5. (iii) An Indemnified Party shall notify the Indemnifying Party promptly in writing, and in reasonable detail, of any Legal Proceeding made by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement, or a representative of the term "foregoing against the Indemnified Party (a “Third Party Claim”) with respect to which the Indemnifying Party" means the party who Party is obligated to provide indemnification under Section 11.02 or 11.3this Agreement. Notwithstanding the foregoing, as applicable. The Indemnified Party agrees should a party be physically served with a complaint with regard to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnified Party must notify the Indemnifying Party will have with a copy of the right complaint within ten (10) calendar days after receipt thereof and shall deliver a copy of such complaint to directthe Indemnifying Party within ten (10) calendar days after the receipt of such complaint; provided, through counsel of its own choosinghowever, that the defense or settlement failure of any Indemnified Party to give such notice shall not affect such Indemnified Party’s rights under this Section 9.1 except and only to the extent such failure materially prejudices the Indemnifying Party. Such notice by the Indemnified Party shall describe the Third Party Claim at its own expense. In such casein reasonable detail, shall include copies of all material written evidence thereof and shall indicate the Indemnified Party may participate in such defenseestimated amount, but in such case the expenses if reasonably practicable, of the Indemnified Party will Loss that has been or may be paid sustained by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.
Appears in 2 contracts
Sources: Merger Agreement (Trulieve Cannabis Corp.), Merger Agreement (Trulieve Cannabis Corp.)
Procedures for Indemnification. As used herein, an "Indemnified Party" means (a) An Indemnitee shall give notice of any matter that such Indemnitee has determined has given or would reasonably be expected to give rise to a party seeking right of indemnification for under this Agreement or any Loss Ancillary Agreement (including, but not limited other than a Third-Party Claim which shall be governed by Section 10.4(b)) to attorneys fees) any Party that is or may be required pursuant to Section 11.2 this Agreement or 11.3 hereofany Ancillary Agreement to make such indemnification (the “Indemnifying Party”) promptly (and in any event within fifteen (15) days) after making such a determination. Such notice shall state the amount of the Loss claimed, as applicableif known, and method of computation thereof, and contain a reference to the term "Indemnifying Party" means provisions of this Agreement or the party who applicable Ancillary Agreement in respect of which such right of indemnification is obligated claimed by such Indemnitee; provided, however, that the failure to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give such notice shall not release the Indemnifying Party prompt from any of its obligations except and solely to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a Party to this Agreement or an Affiliate of a Party (a “Third-Party Claim”) as to which such Indemnitee is or reasonably expects to be entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third-Party Claim promptly (and in any event within thirty (30) days) after receipt by such Indemnitee of written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third the Third-Party Claim"; provided, however, that the failure to provide notice of any such Third-Party Claim pursuant to this sentence shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure (except that the Indemnifying Party or Parties shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(c) An Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the Indemnitee, if it has knowledge, for which such Indemnified Party gives written notice of its intention to do so (including a statement that the Indemnitee is entitled to indemnification under this Article 11X) to the applicable Indemnitees within thirty (30) days of the receipt of notice from such Indemnitees of the Third-Party Claim (failure of the Indemnifying Party to respond within such thirty (30) day period shall be deemed to be an election by the Indemnifying Party not to assume the defense for such Third-Party Claim). In After a notice from an Indemnifying Party to an Indemnitee of its election to assume the case defense of a Third Third-Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise or settlement thereof, at its own expense and, in any event, shall reasonably cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses and information in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the good faith judgment of the Indemnitee, result in the loss of any existing privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Section 10.4, in the event that (i) an Indemnifying Party elects not to assume the defense of a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the Indemnitee, (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnitee’s exposure to Liability in connection with such Third-Party Claim is reasonably expected to exceed the Indemnifying Party’s exposure in respect of such Third-Party Claim taking into account the indemnification obligations hereunder, or (v) the Person making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee shall be entitled to control the defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing (such counsel to be reasonably acceptable to the Indemnifying Party). If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party will have shall reasonably cooperate with the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate Indemnitee in such defense, but defense and make available to the Indemnitee all witnesses and information in such case the expenses of the Indemnified Party will be paid Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party. The Indemnified Party will promptly provide Indemnitee; provided, however, that such access shall not require the Indemnifying Party to disclose any information the disclosure of which would, in the good faith judgment of the Indemnifying Party, result in the loss of any existing privilege with access respect to such information or violate any applicable Law.
(e) Unless the Indemnifying Party has failed to assume the defense of the Third-Party Claim in accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third-Party Claim without the consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). If an Indemnifying Party has failed to assume the defense of the Third-Party Claim, it shall not be a defense to any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or opinions as to the Indemnified conduct of such defense were not accepted or adopted, that such Indemnifying Party does not approve of the quality or manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(f) In the case of a Third-Party Claim, no Indemnifying Party shall consent to entry of any judgment or enter into any settlement of the Third-Party Claim without the consent (not to be unreasonably withheld, conditioned or delayed) of the Indemnitee if the effect thereof is to permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release the Indemnitee from all liabilities and obligations with respect to such Third-Party Claim or includes an admission of guilt or liability on behalf of the Indemnitee.
(g) Absent fraud or intentional misconduct by an Indemnifying Party's records , the indemnification provisions of this Article X shall be the sole and personnel relating exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement or any Ancillary Agreement, and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the foregoing other than under this Article X against any Indemnifying Party.
(h) Notwithstanding anything to the contrary in this Agreement, in the event that counsel or independent accountants for a Protected REIT determine that there exists a material risk that any indemnification payments due under this Agreement would be treated as Nonqualifying Income upon the payment of such amounts to the relevant Indemnitee, the amount paid to the Indemnitee pursuant to this Agreement in any tax year shall not exceed the maximum amount that can be paid to the Indemnitee in such year without causing the Protected REIT to fail to meet the REIT Requirements for any tax year, determined as if the payment of such amount were Nonqualifying Income as determined by such counsel or independent accountants to the Protected REIT. If the amount payable for any tax year under the preceding sentence is less than the amount which the relevant Indemnifying Party would otherwise be obligated to pay to the relevant Indemnitee pursuant to this Agreement (the “Expense Amount”), then:
(1) the Indemnifying Party shall place the Expense Amount into an escrow account (the “Escrow Account”) using an escrow agent and agreement reasonably acceptable to the Indemnitee and shall not release any portion thereof to the Indemnitee, and the Indemnitee shall not be entitled to any such Third Party Claim during normal business hours amount, unless and will otherwise cooperate with until the Indemnitee delivers to the Indemnifying Party in Party, at the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption sole option of the defense relevant Protected REIT, (i) an opinion (an “Expense Amount Tax Opinion”) of the Protected REIT’s tax counsel to the effect that such amount, if and to the extent paid, would not constitute Nonqualifying Income, (ii) a letter (an “Expense Amount Accountant’s Letter”) from the Protected REIT’s independent accountants indicating the maximum amount that can be paid at that time to the Indemnitee without causing the Protected REIT to fail to meet the REIT Requirements for any relevant taxable year, or (iii) a private letter ruling issued by the IRS to the Protected REIT indicating that the receipt of any such Third Party Claim Expense Amount hereunder will not cause the Protected REIT to fail to satisfy the REIT Requirements (a “REIT Qualification Ruling” and, collectively with an Expense Amount Tax Opinion and an Expense Amount Accountant’s Letter, a “Release Document”); and (2) pending the delivery of a Release Document by the Indemnitee to the Indemnifying Party, the Indemnified Party will Indemnitee shall have the right, but not paythe obligation, or permit to be paid, any part of any claim or demand arising borrow the Expense Amount from such Third Party Claim, unless the Escrow Account pursuant to a loan agreement (an “Indemnity Loan Agreement”) reasonably acceptable to the Indemnitee that (i) requires the Indemnifying Party consents to lend the Indemnitee immediately available cash proceeds in writing an amount equal to such payment the Expense Amount (which consent will not be unreasonably withheldan “Indemnity Loan”), delayed or conditionedand (ii) or unless provides for (A) a final judgment from which no appeal may be taken by or on behalf commercially reasonable interest rate and commercially reasonable covenants, taking into account the credit standing and profile of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent Indemnitee or any guarantor of the Indemnified PartyIndemnitee, which consent will not be unreasonably withheld, delayed or conditioned. If including the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereofProtected REIT, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense time of such Third Party Claim pursuant to this Section loan, and proposes to settle such claim prior to (B) a final judgment thereon or to forgo appeal 15 year maturity with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimno periodic amortization.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Ashford Hospitality Trust Inc), Separation and Distribution Agreement (Ashford Hospitality Prime, Inc.)
Procedures for Indemnification. As used herein, (a) In the event an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide Party seeks indemnification under Section 11.02 or 11.3this Agreement, as applicable. The the Indemnified Party agrees shall promptly give notice hereunder to give the Indemnifying Party prompt written Indemnitor upon obtaining notice of any eventdemand for payment of any Covered Obligation, or any claim, action, suit, demand, assessment, investigation, arbitration or service of a summons or other initial or continuing legal or administrative process or proceeding by in any Proceeding instituted, or in respect of a third party (a "Third Party Claim") of which it has knowledgethreatened to be instituted, for which such against the Indemnified Party is entitled as to which recovery or other action may be sought against the Indemnified Party because of the indemnification under this Article 11. In provided for herein, and the case of a Third Indemnified Party Claim, shall be required to permit the Indemnifying Party will have the right Indemnitor to direct, through counsel of its own choosing, assume the defense or settlement of any such Third Party Claim at its own expenseProceeding. In such case, the Indemnified Party may participate in such defense, but in such case the expenses The right to indemnification hereunder shall not be affected by any failure of the Indemnified Party will be paid to give such notice (or by delay by the Indemnified PartyParty in giving such notice) unless, and only to the extent that, the rights and remedies of the Indemnitor shall have been prejudiced as a result of the failure to give, or the delay in giving, such notice. The Failure by the Indemnitor to notify the Indemnified Party will promptly provide the Indemnifying Party with access of its affirmative intent to defend any such Proceeding within thirty (30) days after notice thereof shall have been given to the Indemnified Party's records and personnel relating Indemnitor shall be deemed a waiver by the Indemnitor of its right to defend such Proceeding.
(b) If the Indemnitor assumes the defense of any such Third Party Claim during normal business hours and will otherwise cooperate with Proceeding, the Indemnifying Party obligations of the Indemnitor hereunder as to such Proceeding shall include taking all steps reasonably necessary in the defense or settlement of such Third Party Claim, Proceeding and the Indemnifying Party will reimburse holding the Indemnified Party for harmless from and against any and all its reasonable out-of-pocket costs Losses caused by or arising out of any settlement approved by the Indemnitor or any judgment entered in connection with such Proceeding except where, and expenses incurred only to the extent that, the Indemnitor has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnitor shall not, in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by Proceeding, consent to entry of any judgment (other than a judgment of dismissal on the Indemnifying Party, merits without cause) except with the written consent of the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will shall not be unreasonably withheld, delayed or conditioned) ), or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without enter into any settlement (except with the written consent of the Indemnified Party, which consent will shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or omission of any violation of law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party, (ii) the sole relief provided is monetary damages, and (iii) the settlement shall include the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such Proceeding. Upon the Indemnitor’s assumption of the defense of any such Proceeding, the Indemnified Party shall be entitled to participate in the defense of the Proceeding, but solely by observation and comment to the Indemnitor, and the counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such counsel and the payment of fees by the Indemnitor shall have been authorized in advance in writing by the Indemnitor; or (ii) the Indemnitor’s legal counsel shall advise the Indemnitor in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defenseimmediately preceding sentence is applicable, then the Indemnified Party will have the right to undertake the defense or settlement thereof, may employ separate counsel at the Indemnifying expense of the Indemnitor to represent the Indemnified Party's expense, but in no event shall the Indemnitor be obligated to pay the costs and expenses of more than one such separate counsel for any one Proceeding in any one jurisdiction. If The Indemnitor shall not be liable for any settlement of any Proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnitor agrees to indemnify the Indemnified Party assumes against any Loss by reason of such settlement or judgment.
(c) Each party hereto shall cooperate in good faith and in all respects with the Indemnitor and its representatives (including without limitation its counsel) in the investigation, negotiation, settlement, trial and/or defense of such Third Party Claim pursuant any Proceedings (and any appeal arising therefrom). The parties shall cooperate with each other and any notifications to and information requests of any insurers. No individual representative of any party hereto or the respective affiliates shall be personally liable for any loss, claim or other amount under this Section and proposes Agreement, except as specifically agreed to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimby said individual representative.
Appears in 2 contracts
Sources: Indemnification Agreement (Welsh Property Trust, Inc.), Indemnification Agreement (Welsh Property Trust, Inc.)
Procedures for Indemnification. As used hereinPromptly after receipt by an Indemnitee of written notice of the assertion or the commencement of any Action by a third party (a “Third-Party Claim”) with respect to any matter referred to in Section 9.2 or Section 9.3, an "Indemnified the applicable Indemnitee shall give written notice thereof to the Indemnifying Party" means , which notice shall include a party seeking indemnification description of the Action, the amount thereof (if known and quantifiable) and the basis for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicablethe Action, and thereafter shall keep the term "applicable Indemnifying Party" means Party reasonably informed with respect thereto; provided, that failure of the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees applicable Indemnitee to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, as provided herein shall not relieve the Indemnifying Party will of its obligations hereunder except to the extent that the Indemnifying Party is materially prejudiced thereby. Thereafter, the applicable Indemnitee shall deliver to the Indemnifying Party, promptly following the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee to the extent relating to the Third-Party Claim and reasonably necessary to the Indemnifying Party’s analysis thereof. A claim for indemnification by an Indemnitee for any matter not involving a Third-Party Claim may be asserted by notice to the Indemnifying Party. The Indemnifying Party shall have the right to direct, through counsel of its own choosing, control the defense and handling, and settle or settlement compromise, of any such Third Third-Party Claim at its own sole expense. In such case; provided, that the Indemnified Party may Indemnitee shall be entitled to participate in the defense of such Action giving rise to its claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to the limitations set forth below) by appointing a counsel reasonably acceptable to the applicable Indemnitee to be the lead counsel in connection with such defense; provided, but that:
(a) the Indemnitee shall be entitled to participate in the defense of such case claim and to employ counsel of its choice for such purpose; provided, that the fees and expenses of the Indemnified Party will such separate counsel shall be paid borne by the Indemnified Party. The Indemnified Party will promptly provide Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party with access to effectively assumes control of such defense which, notwithstanding the Indemnified foregoing, shall be borne by the Indemnifying Party's records , and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with except that the Indemnifying Party in shall pay all of the defense or settlement fees and expenses of such Third Party Claim, and separate counsel if a reasonable likelihood exists of a conflict of interest between the Indemnifying Party will reimburse and the Indemnified Indemnitee);
(b) the Indemnifying Party for all its reasonable out-of-pocket costs shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay the fees and expenses incurred of counsel retained by the Indemnitee if (i) the claim for indemnification relates to or arises in providing connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (ii) the Indemnitee reasonably believes an adverse determination with respect to the Action giving rise to such access, personnel claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects of the Indemnitee; (iii) the claim seeks an injunction or equitable relief against the Indemnitee; (iv) a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and cooperation. Upon assumption the Indemnitee; (v) upon written notice from the Indemnitee to the Indemnifying Party that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim with reasonable detail of the Indemnitee’s good faith justifications for such determination; and
(c) if the Indemnifying Party shall control the defense of any such Third Party Claim by the Indemnifying Partyclaim, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of shall obtain the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed Indemnitee before entering into any settlement of a claim or conditioned. If the Indemnifying Party fails ceasing to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimclaim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.), Asset Purchase Agreement (Complete Solaria, Inc.)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys feesa) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to An Indemnitee shall give the Indemnifying Party prompt notice of any matter that an Indemnitee has determined has given, or reasonably anticipates could give rise to, a right of indemnification under this Agreement (other than a Third Party Claim which shall be governed by Section 7.04(b)), within 30 days of such determination, stating the amount of the Indemnifiable Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure.
(b) If an Action is made against a Cadbury plc Indemnitee or a Beverages Indemnitee (each, an “Indemnitee”) by any Person who is not a Party or a member of a Group of a Party (a “Third Party Claim”) as to which such Indemnitee is or may be entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the other Party which is or may be required pursuant to this ARTICLE VII or pursuant to any Ancillary Agreement or Continuing Arrangement to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 30 days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that the failure to provide notice of any such Third Party Claim pursuant to this sentence shall not release the Indemnifying Party from any of its obligations except to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly after the Indemnitee’s receipt thereof (and in any event within 10 Business Days), copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim.
(c) An Indemnifying Party shall be entitled (but shall not be required) to assume and control the defense of any Third Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel that is reasonably acceptable to the applicable Indemnitees, if it gives notice of its intention to do so to the applicable Indemnitees within 30 days of the receipt of notice of the Third Party Claim from such Indemnitees. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, at its own expense and, in any event, shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent Information and materials in such Indemnitee’s possession or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding under such Indemnitee’s control relating thereto as are reasonably required by or in respect of the Indemnifying Party.
(d) If an Indemnifying Party elects not to assume responsibility for defending a third party (a "Third Party Claim", or fails to notify an Indemnitee of its election as provided in Section 7.04(c), such Indemnitee may defend such Third Party Claim at the cost and expense of the Indemnifying Party. If the Indemnitee is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnitee in such defense and make available to the Indemnitee, at the Indemnifying Party’s expense, all witnesses, pertinent Information, material in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee.
(e) If the Indemnifying Party has assumed the defense of which it has knowledgethe Third Party Claim in accordance with the terms of this Agreement, for which such Indemnified no Indemnitee may settle or compromise any Third Party is entitled to indemnification under this Article 11. Claim without the consent of the Indemnifying Party.
(f) In the case of a Third Party Claim, the no Indemnifying Party will have the right shall consent to direct, through counsel entry of its own choosing, the defense any judgment or enter into any settlement of any such the Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which Indemnitee; provided that consent will from the Indemnitee shall not be unreasonably withheldrequired if such settlement contains a full and unconditional release of the Indemnitee and does not permit any injunction, delayed declaratory judgment, other order or conditioned. If other non-monetary relief to be entered, directly or indirectly, against any Indemnitee.
(g) Except as may otherwise be specifically provided for in the Indemnifying Ancillary Agreements and except as set forth in Sections 10.02 (d) and (f) hereof, the indemnification provisions of this ARTICLE VII shall be the sole and exclusive remedy of the Parties for any failure by the other Party fails to defend perform and comply with any covenants and agreements in this Agreement and any other dispute, controversy or fails to prosecute claim (whether arising in contract, tort or withdraws from such defenseotherwise) that may arise out of or relate to, then or arise under or in connection with, this Agreement or any Ancillary Agreement or Continuing Arrangement, or the Indemnified Party will have transactions contemplated hereby or thereby (including all actions taken in furtherance of the right to undertake the defense transactions contemplated hereby or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim thereby on or prior to a final judgment thereon the Demerger Effective Time), between or to forgo appeal with respect theretoamong any member of the Cadbury plc Group, then on the Indemnified Party will give one hand, and any member of the Indemnifying Party prompt written notice thereof and DPS Group, on the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimother hand.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Dr Pepper Snapple Group, Inc.), Separation and Distribution Agreement (Dr Pepper Snapple Group, Inc.)
Procedures for Indemnification. As used herein(a) Whenever a claim shall arise for indemnification under Section 10.1, with the exception of claims for litigation expenses in respect of litigation as to which a notice of claim, as provided in this Section 10.2, has previously been given, which expenses shall be funded on an ongoing basis, the party entitled to indemnification (the "Indemnified Party" means a ") shall promptly notify the party seeking from which indemnification for any Loss is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of such claim and, when known, the party who is obligated to provide facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification under Section 11.02 hereunder resulting from or 11.3in connection with any claim or legal proceeding by a third party, as applicable. The the Indemnified Party agrees shall give such notice thereof to give the Indemnifying Party prompt written not later than ten business days prior to the time any response to the asserted claim is required, if possible, and in any event within five business days following receipt of notice thereof. Failure to give timely notice or to include any specified information in any notice required by this Section 10.2 will not affect the rights or obligations of any eventparty hereunder except and only to the extent that, or as a result of such failure, any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is was entitled to indemnification receive such notice was deprived of its right to recover any payment under this Article 11its applicable insurance coverage or was otherwise damaged as a result of such failure. In the case event of any such claim for indemnification resulting from or in connection with a Third Party Claimclaim or legal proceeding by a third party, the Indemnifying Party will have the right to directmay, through counsel of at its own choosingsole cost and expense, assume the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access thereof using counsel who is reasonably satisfactory to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with ; provided, however, that the Indemnifying Party shall first have agreed in the defense or settlement of such Third Party Claim, writing that it does not and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless contest its responsibility for indemnifying the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.Indemnified
Appears in 2 contracts
Sources: Securities Purchase Agreement (Kevco Partners Investment Trust), Securities Purchase Agreement (Kevco Inc)
Procedures for Indemnification. As used herein, an "(a) Any Person (the “Indemnified Party" means ”) may assert a party seeking claim for indemnification for any Loss under Section 7.2 (including, but not limited to attorneys feesa) pursuant to Section 11.2 or 11.3 hereof(b), as applicablethe case may be, by providing written notice (the “Notice”) to the party from which indemnification is sought (the “Indemnifying Party”), stating the amount of Damages, if known, and the term "Indemnifying Party" means nature and basis of such claim.
(b) In the party who is obligated to provide indemnification under Section 11.02 case of Damages that arise or 11.3may arise by reason of any Third-Party claim, as applicable. The promptly after receipt by an Indemnified Party agrees of written notice of the assertion of any claim or the commencement of any action with respect to any matter in respect of which indemnification may be sought hereunder, the Indemnified Party shall give Notice to the Indemnifying Party and shall thereafter keep the Indemnifying Party reasonably informed with respect thereto, provided that failure of the Indemnified Party to give the Indemnifying Party prompt notice as provided herein shall not relieve the Indemnifying Party of any of its obligations hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such failure. In case any such claim is made or action is brought against any Indemnified Party, the Indemnifying Party shall be entitled to assume the defense thereof, by written notice to the Indemnified Party within thirty (30) days after receipt of the Notice stating its intent to do so and acknowledging its potential liability to the Indemnified Party hereunder. If the Indemnifying Party assumes the defense of such claim or action, it shall have the right to settle such claim or action; provided, however, that it shall not settle such claim or action without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) if such settlement (i) does not include as an unconditional term thereof the giving by the claimant or the plaintiff of a release of the Indemnified Party from all liability with respect to such claim or action or (ii) involves the imposition of equitable remedies or the imposition of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or material obligations on such Indemnified Party other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, than financial obligations for which such Indemnified Party is entitled will be indemnified hereunder. Following delivery of notice of its intention to indemnification under this Article 11. In assume the case defense of a Third Party Claimany claim or action hereunder, the Indemnifying Party will shall not be liable hereunder for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if the defendants in any action shall include both an Indemnifying Party and any Indemnified Party and such Indemnified Party shall have reasonably concluded that counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to such Indemnified Party, such Indemnified Party shall have the right to direct, through separate counsel of its own choosing, to participate in the defense or settlement of such action on its behalf, at the expense of the Indemnifying Party; provided, further, however, that the Indemnifying Party shall not be obligated to pay the expenses of more than one separate counsel for all Indemnified Parties, taken together. If the Indemnifying Party chooses to assume the defense of any such Third Party Claim at its own expense. In such caseclaim or action pursuant hereto, the Indemnified Party may participate shall cooperate in such defense, but in such case which cooperation shall include the expenses of retention and the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide provision to the Indemnifying Party with access to the Indemnified Party's of records and personnel relating information which are reasonably relevant to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimdefense, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs making employees available on a mutually convenient basis to provide additional information and expenses incurred in explanation of any materials provided hereunder, including providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit employees to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment serve as witnesses.
(which consent will not be unreasonably withheld, delayed or conditionedc) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend notify the Indemnified Party of its desire to assume the defense of any claim or fails to prosecute action within the prescribed period of time, or withdraws from such defenseshall notify the Indemnified Party that it will not assume the defense hereof, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes may assume the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretoaction, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof in which event it may do so acting in good faith, and the Indemnifying Party will have shall be bound by any determination made in any such action, provided, however, that the Indemnified Party shall not be permitted to settle any such action without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No such determination or settlement shall affect the right of the Indemnifying Party to dispute the Indemnified Party’s claim for indemnification hereunder. The Indemnifying Party shall be permitted to participate in the settlement or assume or reassume the defense of such Third claim or action and to employ counsel at its own expense.
(d) With respect to claims solely between the parties, following receipt of notice from the Indemnified Party Claimof a claim, the Indemnifying Party shall have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and its authorized Representatives the information relied upon by the Indemnified Party to substantiate the claim. With respect to claims for Uncapped Damages, if the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of the thirty-day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, the Indemnifying Party shall immediately pay to the Indemnified Party the agreed-to amount of such claim, and if the Indemnified Party and the Indemnifying Party do not agree within such thirty-day period (or any mutually agreed upon extension thereof), the Indemnified Party may seek appropriate remedy, subject to the terms hereof.
Appears in 2 contracts
Sources: Master Reciprocal Settlement Agreement (Adelphia Communications Corp), Global Settlement Agreement (Adelphia Communications Corp)
Procedures for Indemnification. As used herein(a) Any claim under SECTION 3.05, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 SECTION 4.01 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, SECTION 4.02 or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect Section of this Agreement on account of a third party (a "Third Party Claim") of Loss which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of does not result from a Third Party Claim, Claim shall be asserted by written notice given by or on behalf of an Indemnitee to the relevant Indemnifying Party. Such Indemnifying Party will shall have a period of 30 calendar days after the right receipt of such notice within which to direct, through counsel of its own choosing, the defense or settlement of respond thereto. If any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate claim is not paid in such defense, but in such case the expenses of the Indemnified Party will be paid full by the Indemnified Party. The Indemnified Party will promptly provide the an Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim within 30 calendar days after written notice has been received by the Indemnifying Party, the Indemnified such Indemnitee and Indemnifying Party will not payshall negotiate in good faith for a reasonable period of time to settle such amount claimed; PROVIDED, or permit to be paidHOWEVER, any part of any claim or demand arising from that such Third Party Claimreasonable period shall not, unless otherwise agreed by such Indemnitee and Indemnifying Party in writing, exceed 45 calendar days from the time they began such negotiations; PROVIDED, FURTHER, that if such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. The Indemnitee may, but need not, at any time thereafter bring an Action against the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf recover the unpaid amount of the Indemnified Party is entered against claim and, if successful in whole or in part, the Indemnified Party for Indemnitee also shall be entitled to be paid the expenses of prosecuting such liability. No claim; PROVIDED, HOWEVER, that in the event of any such Third Party Claim may be settled by Action, neither the Indemnitee nor the Indemnifying Party without shall assert the written consent defenses of statute of limitations and laches arising for the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If period beginning after the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate date they began negotiations hereunder as provided in the settlement or assume or reassume the defense of such Third Party Claimpreceding sentence.
Appears in 2 contracts
Sources: Distribution Agreement (Hussmann International Inc), Distribution Agreement (Midas Group Inc)
Procedures for Indemnification. As used herein(a) Promptly (and in any event within thirty (30) days) after a Party or Parties to be indemnified (whether one or more, an the "Indemnified Party" means ") receives notice of any Claim covered by Section 10.1, the Indemnified Party shall, if a party seeking indemnification for any Loss (including, but not limited Claim in respect thereof is to attorneys fees) be made pursuant to Section 11.2 or 11.3 hereof10.1, as applicable, and notify the term Party from whom indemnification is sought (the "Indemnifying Party" means ") in writing of such Claim; provided, however, that the party who is obligated failure to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give so notify the Indemnifying Party prompt written notice shall not relieve the Indemnifying Party from any liability which it may have to the Indemnified Party pursuant to Section 10.1, except to the extent of any eventmaterial detriment suffered by the Indemnifying Party as a result of such failure. The amount of each Claim for indemnity, or any claimtogether with a list identifying each separate item of Loss to the extent known, action, suit, demand, assessment, investigation, arbitration or other proceeding by or shall be set forth in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled the Claim notice delivered to indemnification under this Article 11the Indemnifying Party. In the case event that a Claim arises out of, or results from, Claims of a Third Party Claimthird parties, the Indemnifying Party will may at its option undertake the defense thereof by counsel or representatives chosen by it which are reasonably acceptable to the Indemnified party. The Indemnifying Party shall have the sole right to direct, through counsel of its own choosing, the defense compromise or settlement of settle any such Third Party Claim at its own expense. In if (i) such case, settlement or disposition shall impose no material obligation or burden whatsoever on the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid which is not wholly discharged by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access and shall provide a full release to the Indemnified Party's records , and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with (ii) the Indemnifying Party in the defense shall be fully capable of performing its obligations pursuant to such settlement or settlement disposition. Each of such Third Party Claim, and the Indemnifying Party will reimburse and the Indemnified Party for all its reasonable out-of-pocket costs shall be entitled to consult with each other, to the extent it reasonably requests, in respect of the defense of such Claim and expenses incurred shall cooperate in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by Claim, including making its officers, directors, employees and books and records available for use in defending against such Claim, and it shall take those commercially reasonable actions within it power which are necessary to preserve any legal defenses to such matters.
(b) If the Indemnifying Party, within a reasonable time after notice of any third party Claim, fails to undertake the defense of such Claim, the Indemnified Party will not paywill, or permit by notice to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing of its intent to such payment (which consent will not be unreasonably withhelddo so, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense of such Claim with counsel or settlement thereof, at representatives chosen by it which are reasonably acceptable to the Indemnifying Party's expense. If The Losses of the Indemnified Party assumes shall include the reasonable costs and expenses incurred in any such defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretothird party's Claim. Notwithstanding the foregoing, then the Indemnified Party will give shall have no right to settle or compromise any such Claim without the prior written consent of the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimParty, which consent shall not be unreasonably withheld.
Appears in 1 contract
Procedures for Indemnification. As used (a) Whenever a claim shall arise for indemnification under Section 11.2, 11.3 or 14.1, with the exception of claims for litigation expenses in respect of litigation as to which a notice of claim, as provided in this Section 11.4, has previously been given, which expenses shall be funded on an ongoing basis, and, except as otherwise provided in Section 14.4, the party entitled to indemnification (the "INDEMNIFIED PARTY") shall promptly notify the party from which indemnification is sought (the "INDEMNIFYING PARTY") of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim -------- ------- for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten Business Days prior to the time any response to the asserted claim is required, if possible, and in any event within fifteen Business Days following receipt of notice thereof (provided that failure to notify the Indemnifying Party shall -------- not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party demonstrates that it has been actually prejudiced by such failure). In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof by written notice within 30 calendar days, using counsel that is reasonably satisfactory to the Indemnified Party. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to take all steps necessary in the defense thereof including the settlement of any case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified -------- ------- Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. If the Indemnifying Party has assumed the defense of any claim or Legal Proceeding by a third party as provided herein, an "(A) it shall be conclusively established for the purposes hereof that the claims made in that Legal Proceeding are within the scope of and subject to indemnification hereunder, and the Indemnifying Party shall promptly indemnify the Indemnified Party in accordance with the terms of this Article XI, and (B) the Indemnifying Party shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such third party of the Indemnified Party" means ), or consent to the entry of any judgment that does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party seeking indemnification for without the Indemnified Party's prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any Loss (investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article XI, including, but not limited to, by providing the other party with reasonable access to attorneys feesemployees and officers (including as witnesses) pursuant to Section 11.2 or 11.3 hereof, and other information. So long as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any eventis in good faith defending such claim or proceeding, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such the Indemnified Party is entitled to indemnification under this Article 11shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. In the case of a Third Party Claim, If the Indemnifying Party will have the right to direct, through counsel of its own choosing, does not assume the defense or settlement of any such Third Party Claim at its own expense. In such caseclaim or litigation in accordance with the terms hereof, the Indemnified Party may participate defend against such claim or litigation in such defensemanner as it may deem appropriate, but in including settling such case claim or litigation (after giving prior written notice of the expenses same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimmay reasonably deem appropriate, and the Indemnifying Party will reimburse promptly indemnify the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such accessaccordance with the provisions of this Article XI.
(b) If Seller, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by as the Indemnifying Party, assumes defense of a claim or Legal Proceeding under and subject to Section 11.4(a) and such claim or Legal Proceeding has been brought by a customer or supplier of the Business of any Acquired Company, subject to any limitation under applicable Law and in addition to those rights afforded Purchaser as Indemnified Party will not payunder Section 11.4(a), or permit to be paid, any part (i) Seller shall provide Purchaser with a timely and reasonably detailed account of any such claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing Legal Proceeding and copies of all written materials relating to such payment claim or Legal Proceeding, (which consent will not be unreasonably withheld, delayed or conditionedii) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle Seller shall consult with Purchaser before taking any significant action in connection with such claim prior or Legal Proceeding, (iii) Seller shall consult with Purchaser and offer Purchaser an opportunity to a final judgment thereon comment before submitting any written materials to any Governmental Body prepared or to forgo appeal furnished in connection with respect theretosuch claim or Legal Proceeding, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate (iv) Seller shall defend such claim or Legal Proceeding diligently and in the settlement or assume or reassume the defense of such Third Party Claimgood faith.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys feesa) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the The party who is obligated seeking indemnification (the “Claimant”) shall give written notice to the party or parties from whom indemnification is sought (the “Indemnitor”) and any other party to this Agreement promptly after the Claimant learns of the claim or proceeding, which notice shall provide indemnification under Section 11.02 reasonable detail and specificity as to the claim or 11.3proceeding and the amount of damages sought in such claim or proceeding; provided, as applicable. The Indemnified Party agrees that, the failure to give such notice shall not relieve the Indemnifying Party prompt written notice Indemnitor or Indemnitors of its or their obligations hereunder except to the extent it is or they are actually damaged thereby. With respect to any event, third-party claim or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of as to which it has knowledge, for which such Indemnified Party the Claimant is entitled to indemnification under this Article 11. In the case of a Third Party Claimindemnification, the Indemnifying Party will Indemnitor or Indemnitors shall have the right to directelect in writing to defend such claim or proceeding, through to select and employ counsel of its or their own choosingchoosing to defend against any such claim or proceeding, to assume control of the defense of such claim or settlement proceeding, and to compromise, settle or otherwise dispose of the same, if the Indemnitor or Indemnitors deem it advisable to do so, all at the expense of the Indemnitor or Indemnitors. The parties will fully cooperate in any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimaction, and the Indemnifying Party will reimburse the Indemnified Party shall make available to each other any books or records useful for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by claim or proceeding. The Claimant may elect to participate in the Indemnifying Partydefense of any such third party claim, and may, at its sole expense, retain separate counsel in connection therewith. Notwithstanding the foregoing, if, within fifteen (15) days of receiving written notice of a claim or proceeding from the Claimant, the Indemnified Party will Indemnitor or Indemnitors elect in writing not pay, or permit to be paid, any part of any contest such claim or demand arising from such Third Party Claimproceeding or fail to make any election, unless the Indemnifying Party consents in writing Claimant will (upon notice to such payment (which consent will not be unreasonably withheld, delayed the Indemnitor or conditionedIndemnitors) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense defense, compromise or settlement thereofof such claim on behalf of and for the account and risk, and at the Indemnifying Party's expense. If expense of, the Indemnified Party assumes Indemnitor or Indemnitors; provided, that, (i) the defense Claimant shall not settle or compromise any third party claim without the prior written consent of the Indemnitor or Indemnitors and (ii) in the event that the Indemnitor or Indemnitors elect to defend such claim or proceeding in accordance with this Section 7.4(a), the Indemnitor or Indemnitors shall not settle or compromise any third party claim without the prior written consent of the Claimant, in each case of (i) and (ii) which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitor or Indemnitors may settle a third party claim without the prior written consent of the Claimant if (x) the Claimant is not required to make any payment, (y) the party or parties making the third party claim execute a full release of the Claimant and (z) there is not in effect any injunction related to the third party claim.
(b) Notwithstanding Section 7.4(a) above, in the event that Roxio desires to make a claim under Section 4.4(b), Roxio shall, within 60 days of the Effective Date, send written notice to the Sellers of such Third Party claim and shall specify in reasonable detail the basis of such dispute and the amount claimed as a result (the “Company Equity Claim pursuant Notice”). In the event that the Sellers do not object to the Company Equity Claim Notice by written notice of objection (a “Notice of Objection”) delivered to Roxio within ten (10) days after the date of receipt by the Sellers of the Company Equity Claim Notice, the Sellers shall be deemed to have accepted Roxio’s claim for purposes of this Section 7.4(b) and proposes Section 7.5(a). If, in accordance with the immediately preceding sentence, the Sellers deliver a Notice of Objection to settle such claim prior Roxio, the Sellers and Roxio shall promptly endeavor to a final judgment thereon or to forgo appeal mutually agree in writing upon any disputed determination(s) with respect theretoto Company Equity and based on such disputed determinations, then the Indemnified Party will give amount of Company Equity as of the Indemnifying Party prompt written notice thereof Effective Date (which amount shall be used for the purposes of 7.5(a) hereof). At the request of either Seller or Roxio, any dispute between the parties relating to Company Equity which cannot be resolved by them within ten (10) days after receipt of the Notice of Objection by Roxio shall be referred to an independent public accounting firm mutually agreed upon by Roxio and the Indemnifying Party Sellers (the “Disputes Auditor”) for decision, which decision shall be final and binding on the parties hereto. The parties agree that they will have use their commercially reasonable efforts to cause the right Disputes Auditor to participate in render its decision within thirty (30) days after referral of the settlement or assume or reassume dispute to the defense Disputes Auditor for decision pursuant hereto. The decision of the Disputes Auditor shall be limited to resolving any disputed determinations with respect to Company Equity and based on resolution of such Third Party Claimdisputed determinations, providing the amount of Company Equity as of the Effective Date (which amount shall be used for the purposes of Section 7.5(a) hereof). The costs and expenses of the Dispute Auditor shall be shared equally by the Sellers and Roxio.
Appears in 1 contract
Sources: Purchase Agreement (Roxio Inc)
Procedures for Indemnification. As used herein(a) Whenever a claim shall arise for indemnification under this Section 7, an "the party entitled to indemnification (the “Indemnified Party" means a ”), shall notify, in writing, the party seeking from whom indemnification for any Loss is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means ”) of such claim and, when known, the party who is obligated to provide facts constituting the basis for such claim. In the event of any such claim for indemnification under Section 11.02 resulting from or 11.3, as applicable. The Indemnified Party agrees to give in connection with a claim or Action by a third party; the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, may assume the defense or thereof at its sole cost and expense; provided, however, that no settlement of any such Third Party Claim at its own expense. In such case, claim or Action shall be made without the Indemnified Party may participate in such defense, but in such case the expenses prior written consent of the Indemnified Party will (which consent may not be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records unreasonably withheld) unless such settlement fully and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse unconditionally releases the Indemnified Party for from all its reasonable out-of-pocket costs and expenses incurred further liability or obligation on the part of the Indemnified Party in providing connection with such accessclaim or Action, personnel and cooperationin which case such consent shall not be required. Upon assumption of If an Indemnifying Party assumes the defense of any such Third claim or Action, the Indemnifying Party Claim shall be entitled to select counsel and take all steps necessary in the settlement or defense thereof; provided, however, that the Indemnified Party may, at its own expense, participate in any such Action with the counsel of its choice. Whether or not the Indemnifying Party assumes the defense of any claim or Action, the Indemnified Party shall not compromise or settle such claim or Action without the prior written consent of the Indemnifying Party (which consent may not be unreasonably withheld).
(b) The Indemnified Party, the Indemnifying Party and their respective legal counsel shall cooperate in the compromise of, or defense against, any claim or Action by a third party; provided that the Indemnified Party shall be entitled to participate in the defense and to employ counsel, at the Indemnified Party's expense, to assist therein. The Indemnified Party may not settle or compromise any claim over the objection of the Indemnifying Party, except that the Indemnified Party will not pay, or permit to be paid, any part of may settle any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing with respect to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditionedit waives its indemnification under this Agreement. If the Indemnifying Party fails chooses to defend or fails to prosecute or withdraws from any such defenseclaim, then the Indemnified Party will have the right shall make available to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement any books, records or assume other documents or reassume the defense of personnel within its control that are reasonably necessary or appropriate for such Third Party Claimdefense.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys feesa) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a claim or liability asserted in writing by a third party against an Indemnified Party which would give rise to indemnification hereunder (a “Third Party Claim”), the Indemnified Party shall deliver written notice to the applicable Indemnifying Party of such Third Party Claim as soon as possible, and in no event later than fifteen (15) Business Days, following receipt of such written assertion of a claim or liability. The failure by any Indemnified Party to give timely notice referred to in the preceding sentence shall not impair the Indemnified Party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby. The Indemnifying Party shall have the right to defend any such Third Party Claim and control the defense of such Third Party Claim; provided, however, that the Indemnified Party has the right to reasonably approve counsel selected by the Indemnifying Party. If the Indemnifying Party, within ten (10) Business Days after notice of such Third Party Claim, fails to take appropriate steps to defend such Third Party Claim, the Indemnifying Indemnified Party will (upon further notice to the Indemnifying Party) have the right to undertake the defense of such Third Party Claim on behalf of and for the account and at the risk and expense of the Indemnifying Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided that if in the reasonable opinion of counsel for the Indemnified Party (or, in the case of a disagreement between counsel for the parties regarding the presence of such a conflict, the reasonable opinion of independent counsel selected by the parties), there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be responsible for the reasonable fees and expenses of separate counsel to such Indemnified Party in connection with such defense. Notwithstanding any of the foregoing, (i) the Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant to the Indemnified Party of a release from all liability in respect of such claim, and (ii) if a claim involves any criminal or civil investigation or proceeding by any Governmental Authority relating to the Indemnified Party or its Affiliates, the Indemnified Party shall have the right to assume the defense and direct, through counsel of its own choosing, the response to, defense of or settlement of any such Third claim, and shall be entitled to seek indemnification from the Indemnifying Party Claim at its own expense. In such case, for the reasonable cost thereof (in addition to any Losses resulting therefrom); provided that the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate shall consult with the Indemnifying Party in for the defense or settlement purpose of such Third Party Claim, and allowing the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereofparticipate, at the Indemnifying Party's ’s expense. If , in such response, defense or settlement.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that is not a Third Party Claim, the Indemnified Party assumes shall notify the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the applicable Indemnifying Party prompt written notice thereof and in writing of the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.same within thirty
Appears in 1 contract
Sources: Contribution and Purchase Agreement
Procedures for Indemnification. As used herein, an "Indemnified Party" means Whenever a party seeking indemnification Claim shall arise for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 9.02, the Person entitled to indemnification (the “Indemnified Party”) shall promptly notify in writing the Party from which indemnification is sought (the “Indemnifying Party”) of such Claim and, when known, the facts constituting the basis of such Claim; provided, however, that in the event of a Claim for indemnification resulting from or 11.3in connection with a Claim by a third party, the Indemnified Party shall give such written notice thereof to the Indemnifying Party not later than ten (10) Business Days prior to the time any response to the third party Claim is legally required, if possible, and in any event within twenty (20) Business Days following receipt of notice thereof (provided, that failure to timely notify the Indemnifying Party shall not relieve the Indemnifying Party of any Liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party has been actually prejudiced by such failure). Following receipt of notice of any such third party Claim, and unless counsel to the Indemnifying Party shall have reasonably determined in good faith that the assumption of such defense by the Indemnifying Party would be inappropriate due to a conflict of interest (in which case the Indemnified Party may continue to defend such Claim at the expense of the Indemnifying Party), the Indemnifying Party shall have the option, exercisable by written notice to the Indemnified Party within ten (10) days following receipt by the Indemnifying Party of notice such third party Claim, at its cost and expense, to assume the defense of such matter and to retain counsel (not reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding. Upon such assumption, the Indemnifying Party shall not be liable to the Indemnified Party for any fees of other counsel or any other expenses (except as applicableexpressly provided to the contrary herein) with respect to the defense of such Claim, other than reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, only to the extent such fees and expenses exceed the Deductible and only to the extent of such excess (or in the event the Deductible has been otherwise satisfied). The Indemnified Party agrees to give shall have the option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party unless (a) the Indemnifying Party prompt written notice fails to notify the Indemnified Party in writing of any eventits election to defend as provided in this Section 9.05, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect (b) fails to diligently prosecute the defense of a such third party Claim or (a "Third Party Claim"c) of which it has knowledge, for which such Indemnified Party is entitled counsel to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will shall have reasonably determined in good faith that the right defense by the Indemnifying Party would be inappropriate due to directa conflict of interest) with its own counsel and counsel for each Party shall, through to the extent consistent with such counsel’s professional responsibilities, cooperate with the other Party and any counsel designated by that Party. If the Indemnifying Party elects not to compromise or defend such third party Claim, fails to notify the Indemnified Party in writing of its own choosingelection to defend as provided in this Section 9.05, or fails to diligently prosecute the defense or settlement of any such Third Party Claim at its own expense. In such casethird party Claim, the Indemnified Party may participate in defend such defensethird party Claim. In effecting the settlement or compromise of, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access or consenting to the Indemnified Party's records and personnel relating to entry of any judgment with respect to, any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other Party will not pay, and shall enter into only such settlement or permit compromise or consent to be paid, any part the entry of any claim or demand arising from judgment as the other Party shall consent, such Third Party Claim, unless the Indemnifying Party consents in writing consent not to such payment (which consent will not be unreasonably withheld, delayed conditioned or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liabilitydelayed. No such Third Party Claim may be settled by the An Indemnifying Party without the written consent of the Indemnified Party, which consent will shall not be unreasonably withheldliable for any settlement, delayed compromise or conditioned. If judgment not made in accordance with the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimpreceding sentence.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) If any Indemnified Party receives notice of the assertion of any claim, an "Indemnified Party" means the commencement of any suit, action or proceeding, or the imposition of any penalty or assessment by a third party seeking indemnification for any Loss in respect of which indemnity may be sought hereunder (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicablea “Third Party Claim”), and the term "Indemnifying Party" means Indemnified Party intends to seek indemnity hereunder, then the party who Indemnified Party shall provide Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) with written notice of the Third Party Claim (a “Claim Notice”). The failure by an Indemnified Party to notify Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) shall not relieve Seller of any indemnification responsibility under this ARTICLE 7, except to the extent that Seller is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. actually and materially prejudiced thereby.
(b) The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in control the defense or settlement of such Third Party ClaimClaim with reasonably-priced counsel of its choosing; provided that Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) shall be entitled (at the expense of Seller or Seller’s Agent (as applicable)) to participate in the defense of any Third Party Claim with its own counsel; and provided further, and the Indemnifying Party will reimburse that the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of shall not be authorized to settle or compromise any such Third Party Claim by without the Indemnifying Partyprior written consent of Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date), the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will shall not be unreasonably withheld, delayed delayed, or conditioned. Seller (if prior to the Liquidation Date) or unless Seller’s Agent (if after the Liquidation Date) shall, at Purchasers’ cost, reasonably cooperate in such defense and make available all witnesses, pertinent records, materials and information in its possession and control relating thereto as is reasonably required by the Indemnified Party.
(c) Any indemnifiable claim hereunder that is not a final judgment from which no appeal may Third Party Claim shall also be taken asserted by or on behalf of the Indemnified Party by delivering a Claim Notice to Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date). Any Claim Notice seeking indemnity hereunder shall state (i) that an Indemnified Party has incurred, paid, reserved or accrued, or reasonably and in good faith anticipates that it may incur, pay, reserve or accrue, Damages, (ii) the amount of such Damages (which, in the case of Damages not yet incurred, paid, reserved or accrued, may be the maximum amount reasonably anticipated by an Indemnified Party to be incurred, paid, reserved, accrued or demanded by a third party), and (iii) specifying in reasonable detail the basis for such claim. Such Claim Notice shall be given as promptly as is entered against reasonably practicable after the Indemnified Party becomes aware of the basis for each such a claim, provided that the failure to provide such notice shall not relieve Seller of any indemnification responsibility under this ARTICLE 7, except to the extent that Seller is actually and materially prejudiced thereby.
(d) If Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date): (i) agrees with the Indemnified Party with respect to the claim set forth in a Claim Notice, the parties shall prepare a memorandum setting forth such agreement, and such memorandum shall be signed by both parties (any claims covered by such an agreement, “Agreed Claims”); or (ii) disputes the existence or the amount of such claim set forth in a Claim Notice, Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) shall notify the Indemnified Party in writing (with reasonable specificity) within thirty (30) calendar days following receipt of such Claim Notice (the “Response Notice”) and the parties will negotiate in good faith to resolve such claim for up to thirty (30) calendar days thereafter or such other period of time as the parties mutually agree in writing (the “Negotiation Period”). If the parties should then so agree with respect to such claim, the parties shall prepare a memorandum setting forth such agreement, and such memorandum shall be signed by both parties (any claims covered by such an agreement, “Settled Claims”). If the parties are unable to agree within the Negotiation Period specified herein, then the matter shall be submitted to the courts referenced in Section 9.5 below; provided that if such claim is made by an Indemnified Party and Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) does not submit such matter to the courts referenced in Section 9.5 below within thirty (30) calendar days following the expiration of the Negotiation Period specified above, then such matter shall be deemed undisputed and Seller shall indemnify the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent Damages.
(e) Any decision of the Indemnified Party, which consent will not court with respect to both the existence and amount of such claim shall be unreasonably withheld, delayed or conditionedfinal and binding on the parties hereto. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then no Response Notice is received by the Indemnified Party will have within thirty (30) calendar days after Seller’s or Seller’s Agent’s (as applicable) receipt of the right to undertake Claim Notice, the defense or settlement thereof, at the Indemnifying Party's expense. If matter shall be deemed undisputed and Seller shall indemnify the Indemnified Party assumes for the defense Damages (any such claims, “Unobjected Claims”). A “Payable Claim” shall mean a claim for indemnification of such Third Party Claim pursuant Damages under this ARTICLE 7 to this Section and proposes to settle the extent that such claim prior is (A) an Agreed Claim, (B) a Settled Claim, or (C) an Unobjected Claim. An “Unresolved Claim” shall mean any claim for indemnification of Damages under this ARTICLE 7 specified in any Claim Notice, to the extent that such claim is not a final judgment thereon or Payable Claim. In the event that an Indemnified Party is entitled to forgo appeal with respect theretorecover the same Damages under more than one provision of this Agreement, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof shall only be permitted to recover such Damages under one provision, and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimwithout duplication.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) Each Indemnified Party shall promptly give notice hereunder (the "Claim Notice") to the indemnifying Party and, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as the extent applicable, and in accordance with the term "Indemnifying Party" means Escrow Agreement, after becoming aware of any claim as to which recovery may be sought against the party who is obligated to provide indemnification under Section 11.02 indemnifying Party because of the indemnity provided in this Article 10 or 11.3, as applicableotherwise in this Agreement. The Indemnified Party agrees shall provide the indemnifying Party with full and unrestricted access to give all books and records relating to the Indemnifying claim, and to all employees or other persons who are knowledgeable about such claim, in order to allow the indemnifying Party prompt written notice to audit the status of such claim and the payments that have been or will be, made with respect thereto. After receiving such Claim Notice, the indemnifying Party shall have thirty (30) days from the delivery of the Claim Notice to notify the Indemnified Party that the indemnifying Party will assume the defense of any event, such claim or any litigation resulting from such claim; provided that if the period of time to respond, actionanswer, suit, demand, assessment, investigation, arbitration defend or otherwise plead to any claim or other proceeding by or in respect of a third party item is less than such thirty (a "Third Party Claim"30) of which it has knowledgeday period, for which such the Indemnified Party is entitled shall give prior notice to indemnification under this Article 11. In the case of a Third Party Claimindemnifying Party, the Indemnifying Party will who shall have the right to directso respond, through defend, answer or otherwise plead by giving timely notice to the Indemnified Party and if the indemnifying Party fails to give such timely notice to the Indemnified Party, the Indemnified Party, acting reasonably shall have the right to so respond, defend, answer or otherwise plead to such claim. If the indemnifying Party assumes the defense of the claim or litigation at issue, the Indemnified Party shall have the right to employ separate counsel of its own choosing, in such claim or litigation and to participate in the defense or settlement conduct thereof, but the fees and expenses of such counsel shall not be at the expense of the indemnifying Party unless (i) the indemnifying party shall have failed, within the time limits set forth in the preceding sentence, to assume the defense of such claim or litigation, (ii) the employment of such counsel has been specifically authorized in writing by the indemnifying Party, (iii) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the indemnifying Party and such Indemnified Party and indemnifying Party shall have determined that there are material conflicting interests between the indemnifying Party and the Indemnified Party in the legal defense thereof and, in such event, each of legal counsel selected by the indemnifying Party and the Indemnified Party shall be required to cooperate fully with each other, (iv) the relief sought exceeds the indemnifying Party's maximum indemnification obligations under Article 10 hereof, or (v) equitable relief is being sought against any Indemnified Party. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such Claim Notice (or by delay by an Indemnified Party in giving such Claim Notice) unless, and then only to the extent that, the rights and remedies of the indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such Claim Notice. The Claim Notice required hereunder shall specify the basis for the claim for indemnification to the extent ascertainable at the time of the Claim Notice. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall include an estimate of the amount of the claim in the Claim Notice to be provided pursuant to this Section 10.6(a), accompanied by a statement therein that the claim has not yet been liquidated (an "Unliquidated Claim"). In the event that an Indemnified Party gives a Claim Notice for an Unliquidated Claim relating to or arising from the breach of a representation or warranty prior to the termination of the survival period of a representation or warranty set forth in this Section 10, such survival period shall be tolled with respect to such Unliquidated Claim until it becomes finally resolved pursuant to the provisions of this Article 10. If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice within thirty (30) days after the matter giving rise to the claim becomes finally resolved, and such second Claim Notice shall specify the amount of the claim.
(b) Failure by the indemnifying Party to notify the Indemnified Party of its election to defend any such claim or litigation by a third party within thirty (30) days from the delivery of the Claim Notice to the indemnifying Party shall be deemed a waiver by the indemnifying Party of its right to defend such claim or litigation. If the indemnifying Party shall not assume the defense of any such Third Party Claim at its own expense. In such caseclaim by a third party or litigation resulting therefrom, the Indemnified Party may participate defend against such claim or litigation in such defensemanner as it may deem appropriate, but in acting reasonably, and may settle such case claim of litigation on such terms as it may deem appropriate, acting reasonably, without prejudicing its rights against the expenses of the Indemnified indemnifying Party will be paid by the Indemnified Partyprovided for herein. The Indemnified parties and their respective counsel shall provide reasonable cooperation and information in connection with any claim or litigation as to which indemnification is sought.
(c) The indemnifying Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party shall not, in the defense or settlement of such Third Party Claimclaim or any Action resulting therefrom, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense consent to entry of any such Third Party Claim by judgment (other than a judgment of dismissal on the Indemnifying Partymerits without costs) or enter into any settlement, except with the Indemnified Party will not paywritten consent, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will shall not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such claim or Action or which would in any way restrict or impair the business of the Buyers, the Company, any Subsidiary or any Affiliate of any of the foregoing.
(d) If an indemnifying Party does not, within thirty (30) days after its receipt of the Claim Notice required by Section 10.6(a) hereof or in accordance with the Escrow Agreement or, in the case of an Unliquidated Claim, within thirty (30) days after its receipt of the second Claim Notice described in Section 10.6(a), advise the Indemnified Party that the indemnifying Party denies the right of the Indemnified Party to indemnity in respect of the claim, then the amount of such claim shall be unreasonably withheld, delayed or conditioneddeemed to be finally determined between the Parties hereto. If the Indemnifying indemnifying Party fails to defend or fails to prosecute or withdraws from such defensenotifies the Indemnified Party that it disputes any claim made by the Indemnified Party, then the Indemnified Party will have Parties hereto shall endeavor to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by appropriate arbitration in accordance with the right to undertake the defense or settlement thereofterms of this Agreement, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense and any Liability established by reason of such Third Party Claim pursuant settlement, compromise or litigation shall be deemed to this Section and proposes to settle such be finally determined. Any claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate that is finally determined in the settlement or assume or reassume manner set forth above shall be paid promptly by the defense of such Third indemnifying Party Claimin cash.
Appears in 1 contract
Sources: Stock Purchase Agreement (Phoenix International Life Sciences Inc)
Procedures for Indemnification. As used hereinIn the event that any claim is ------------------------------ asserted against any party hereto, or any party hereto is made a party defendant in any action or proceeding, and such claim, action or proceeding involves a matter which is the subject of this indemnification, then such indemnified party (an "Indemnified Party" means a ") shall give written prompt notice thereof to the indemnifying party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term an "Indemnifying Party" means ") of such claim, action or proceeding (although the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees failure to give such notice shall not limit an Indemnified Party's right to indemnification unless the Indemnifying Party prompt written notice is prejudiced in defending such claim by such lack of any eventnotice), or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which and such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will shall have the right to direct, through counsel of its own choosing, join in the defense of said claim, action or settlement proceeding at such Indemnifying Party's own cost and expense and, if the Indemnifying Party agrees in writing to be bound by and to promptly pay the full amount of any final judgment from which no further appeal may be taken and if the Indemnified Party is reasonably assured of the Indemnifying Party's ability to satisfy such Third agreement, then at the option of the Indemnifying Party, such Indemnifying Party Claim at its own expense. In may take over the defense of such claim, action or proceeding, except that, in such case, the Indemnified Party may participate shall have the right to join in such defensethe defense of said claim, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide action or proceeding at its own cost and expense; provided, however, -------- ------- that the Indemnifying Party with access to the Indemnified Party's records and personnel relating to shall not settle or compromise any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense claim, action or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party proceeding without the prior written consent of the Indemnified Party, Party which consent will not be unreasonably withheldwithheld or delayed; and provided, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defensefurther, then that no consent -------- ------- shall be necessary if the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense shall be unconditionally released and completely reimbursed for all Losses in respect of such Third Party Claim pursuant claim. No claim will be subject to this Section and proposes to settle such claim indemnification which is not asserted prior to a final judgment thereon or the expiration of the Survival Period (as defined in Section 8.4 hereof). Subject to forgo appeal with respect theretoSection 9.17 hereof, then after the Indemnified Party will give Effective Date, Chopra and Swadesh Chopra ar▇ ▇▇▇▇▇▇ ▇▇- ▇ointed and shall act as agents for the Indemnifying Party prompt written notice thereof Corporation and the Indemnifying Party will have Stockholders for purposes of responding to indemnification claims by CPI and coordinating the right legal defense thereof if, in Chopra's or Swadesh Chopra's ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇esirable and appropriate to participate in the settlement or assume or reassume the defense of such Third Party Claimdefense.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means Whenever a party seeking indemnification claim shall arise for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.312.1 above, as applicable. The Indemnified Party agrees to give with the Indemnifying Party prompt written notice exception of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or claims for litigation expenses in respect of a third litigation as to which a notice of claim, as provided below in this Section 12.2, has previously been given, which expenses shall be funded on an ongoing basis, the party entitled to indemnification (a the "Third Party ClaimIndemnified Party") shall promptly notify the party from whom indemnification is sought (the "Indemnifying Party") of which it has knowledgesuch claim and, when known, the facts constituting the basis for which such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than 10 business days prior to the time any response to the asserted claim is entitled required, if possible, and in any event within 5 business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability for indemnification under this Article 11it may have if and to the extent that the Indemnifying Party shall not have been prejudiced by such omission. In the case event of any such claim for indemnification resulting from or in connection with a Third Party Claimclaim or Legal Proceeding by a third party, the Indemnifying Party will have the right to directmay, through counsel of at its own choosingsole cost and expense, assume the defense or settlement of any such Third thereof; provided, however, that the Indemnifying Party Claim at shall first have agreed in writing that it does not and will not contest its own expense. In such case, responsibility for indemnifying the Indemnified Party may participate in respect of Losses attributable to such defenseclaim or Legal Proceeding; and, but in such case provided, further, that FMS shall not be entitled to assume the expenses defense of any claim or Legal Proceeding against Newco or Baseline for Taxes with respect to a period ending after the Indemnified Party will be paid by the Indemnified PartyClosing Date. The Indemnified Party will promptly provide the If an Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assumes the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party ClaimLegal Proceeding, unless the Indemnifying Party consents shall be entitled to select counsel and take all steps necessary in writing to such payment (which consent will not the defense thereof; provided, however, that no settlement shall be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party made without the prior written consent of the Indemnified Party, which consent will shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the proposed amount of such settlement); provided, further, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend does not assume the defense of any such claim or fails to prosecute or withdraws from such defenseLegal Proceeding in accordance with the terms hereof, then the Indemnified Party will have may defend (and, in the right case of any claim or Legal Proceeding against Newco or Baseline for Taxes with respect to undertake a period ending after the defense Closing Date, shall defend) against such claim or settlement thereofLegal Proceeding in such manner as it may deem appropriate, at including, but not limited to, settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party's expense. If , which consent shall not be unreasonably withheld) on such terms as the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretomay deem appropriate, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 12.2; provided, however, that if the Indemnified Party does not obtain the prior written consent of the Indemnifying Party to any such settlement, and such written consent is not unreasonably withheld by the Indemnifying Party, the Indemnified Party shall not be entitled to indemnification hereunder from such Indemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 12.2 to the contrary, if, in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 12.2, (i) the Indemnifying Party shall not have promptly employed counsel reasonably satisfactory to the Indemnified Party or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall not have the right to participate in the settlement or assume or reassume direct the defense of any such Third action on behalf of the Indemnified Party. All payments by the Indemnifying Party Claimpursuant to this Article XII shall be in cash and in immediately available funds.
Appears in 1 contract
Sources: Transfer and Shareholders Agreement (Hollywood Media Corp)
Procedures for Indemnification. As used hereinIf any action, an "Indemnified Party" means suit or proceeding ------------------------------ shall be commenced against, or any claim or demand be asserted against, Seller or Buyer, as the case may be, in respect of which Seller or Buyer is entitled to demand indemnification under Section 10 of this Agreement, then as a condition precedent thereto, the party seeking indemnification for any Loss (including, but not limited "Indemnitee") shall promptly notify the other party ("Indemnitor") in writing to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicablethat effect, and with reasonable particularity and with reference to the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicableapplicable provision(s) of this Agreement. The Indemnified Party agrees Indemnitor shall have the right to give assume the Indemnifying Party prompt written notice entire control of any eventthe defense, compromise or any claim, settlement of such action, suit, proceeding or claim and including the selection of counsel, subject to the right of the Indemnitee to participate (at its expense and with counsel of its choice) in the defense, compromise or settlement of such action, suit, proceeding, claim or demand, assessmentand in connection therewith, investigationthe Indemnitee shall cooperate fully in all respects with the Indemnitor in any such defense, arbitration compromise or other proceeding settlement. The Indemnitor will not compromise or settle any such action, suit, proceeding, claim or demand without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld or delayed. So long as the Indemnitor is defending in good faith any such action, suit, proceeding, claim or demand asserted by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In against the case of a Third Party ClaimIndemnitee, the Indemnifying Party Indemnitee shall not settle or compromise such action, suit, proceeding, claim or demand without the prior written consent of the Indemnitor, which consent will have not be unreasonably withheld or delayed. The Indemnitee shall make available to the right Indemnitor or its agents all records and other materials in the Indemnitee's possession reasonably required for contesting any third party claim or demand. If the Indemnitor shall fail to directpromptly and adequately defend any such action, suit, proceeding, claim or demand, then the Indemnitee may defend, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such caseaction, the Indemnified Party may participate in such defensesuit, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimproceeding, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless and (so long as Indemnitee gives the Indemnifying Party consents in writing to such payment Indemnitor at least ten (which consent will not be unreasonably withheld, delayed or conditioned10) or unless a final judgment from which no appeal may be taken by or on behalf days' notice of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent terms of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If proposed settlement thereof and permits the Indemnifying Party fails Indemnitor to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at thereof if Indemnitor objects to the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes proposed settlement) to settle such action, suit, proceeding, claim prior or demand and to a final judgment thereon or to forgo appeal with respect thereto, then recover from the Indemnified Party will give Indemnitor the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense amount of such Third Party ClaimLosses.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The 14.4.1 Each Indemnified Party agrees shall promptly give notice hereunder to give the Indemnifying indemnifying Party prompt written notice after becoming aware of any eventclaim as to which recovery may be sought against the indemnifying Party as a result of the indemnity in this Article XIV, or any claimand, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect if such indemnity shall arise from the claim of a third party (a "Third party, shall permit the indemnifying Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assume the defense of any such Third claim and any litigation or other proceeding resulting from such claim; provided, that any Indemnified Party Claim may, in any event, at its own expense, monitor and participate in, but not control, the defense of any such claim or litigation. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice (or by delay by an Indemnified Party in giving such notice) unless, and then only to the extent that, the rights and remedies of the indemnifying Party shall have been materially prejudiced as a result of the failure to give, or delay in giving, such notice. The notice required hereunder shall specify the basis for the claim for indemnification to the extent ascertainable at the time of the notice. Failure by an indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within thirty (30) days after notice thereof shall have been given to the indemnifying Party shall be deemed a waiver by the Indemnifying Partyindemnifying Party of its right to defend such claim or action. Nothing herein shall be deemed to prevent an Indemnified Party from making a contingent claim for indemnification hereunder, provided the Indemnified Party will not pay, or permit has reasonable grounds to be paid, any part of any believe that the claim or demand arising from for indemnification will be made and sets forth the estimated amount of such Third claim to the extent then ascertainable.
14.4.2 The indemnifying Party Claimshall not, unless in the Indemnifying Party consents in writing defense of such claim or any litigation resulting therefrom, consent to such payment entry of any judgment (other than a judgment of dismissal on the merits without costs) or enter into any settlement, except with the written consent, which consent will shall not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
14.4.3 If the indemnifying Party shall not assume the defense of any such claim by a third party, or litigation resulting therefrom, after receipt of notice from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate.
14.4.4 If an indemnifying Party shall not, within thirty (30) days after its receipt of the notice required by Section 14.4.1 hereof, advise the Indemnified Party that the indemnifying Party denies the right of the Indemnified Party to indemnity in respect of the claim, then the amount of such claim shall be unreasonably withheld, delayed or conditioneddeemed to be finally determined between the Parties hereto. If the Indemnifying indemnifying Party fails to defend or fails to prosecute or withdraws from such defenseshall notify the Indemnified Party that it disputes any claim made by the Indemnified Party, then the Indemnified Party will have the right Parties hereto shall endeavor to undertake the defense settle and compromise such claim, and if unable to agree on any settlement or settlement thereofcompromise, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense such claim for indemnification shall be settled by appropriate litigation, and any liability established by reason of such Third Party Claim pursuant settlement, compromise or litigation shall be deemed to this Section and proposes to settle such be finally determined. Any claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate that is finally determined in the settlement or assume or reassume manner set forth above shall be paid promptly by the defense of such Third indemnifying Party Claimin cash.
Appears in 1 contract
Sources: Asset Purchase Agreement (Berliner Communications Inc)
Procedures for Indemnification. As used herein, an "(a) The Indemnified Party" means a party Party seeking indemnification for any Loss under this Agreement shall promptly notify the party against whom indemnification is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of the party who is obligated to provide indemnification under Section 11.02 assertion of any claim, or 11.3the commencement of any action, as applicable. The Indemnified Party agrees to suit or proceeding by any Third Party, in respect of which indemnity may be sought hereunder and will give the Indemnifying Party prompt such information with respect thereto as the Indemnifying Party may reasonably request, but failure to timely give such notice or at all shall not relieve the Indemnifying Party of any liability hereunder (unless and to the extent the Indemnifying Party has suffered prejudice by such failure). The Indemnifying Party shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of any event, receipt of notice from the Indemnified Party of the commencement of or assertion of any claim, action, suit, demand, assessment, investigation, arbitration suit or other proceeding by or a Third Party in respect of a third party which indemnity may be sought hereunder (a "Third Third-Party Claim"), to assume the defense and control the settlement of such Third-Party Claim that (i) of which it has knowledge, involves (and continues to involve) solely money damages or (ii) involves (and continues to involve) claims for which such both money damages and equitable relief against the Indemnified Party is entitled that cannot be severed, where the claims for money damages are the primary claims asserted by the Third Party and the claims for equitable relief are incidental to indemnification under this Article 11. In the claims for money damages.
(b) The Indemnifying Party or the Indemnified Party, as the case of a Third Party Claimmay be, the Indemnifying Party will shall have the right to directparticipate in (but not control), through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense, the defense of any Third-Party Claim that the other is defending, as provided in this Agreement.
(c) The Indemnifying Party, if it has assumed the defense of any Third-Party Claim as provided in this Agreement, shall not consent to a settlement of, or the entry of any judgment arising from, any such Third-Party Claim without the Indemnified Party's prior written consent (which consent shall not be unreasonably withheld) unless such settlement or judgment relates solely to monetary damages. In such caseThe Indemnifying Party shall not, without the Indemnified Party's prior written consent, enter into any compromise or settlement that (i) commits the Indemnified Party may participate in to take, or to forbear to take, any action or (ii) does not provide for a complete release by such defense, but in such case the expenses Third Party of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide shall have the sole and exclusive right to settle any Third-Party Claim, on such terms and conditions as it deems reasonably appropriate, to the extent such Third-Party Claim involves equitable or other non-monetary relief against the Indemnified Party, and shall have the right to settle any Third-Party Claim involving money damages for which the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in has not assumed the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit pursuant to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without this Section 9.4 with the written consent of the Indemnified Indemnifying Party, which consent will shall not be unreasonably withheld, delayed withheld or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimdelayed.
Appears in 1 contract
Procedures for Indemnification. As used hereinExcept as provided in Section 7.02, an "the procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party" means a ”) shall promptly give notice to the party seeking from whom the indemnification for any Loss is claimed (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means ”) of any claim whether between the parties or brought by a third party who is obligated against the Indemnified Party, specifying in reasonable detail (i) the factual basis for such claim and (ii) the amount of the claim. If a claim relates to provide an action, suit, or proceeding filed by a third party against the Indemnified Party, such notice shall be given by the Indemnified Party to the Indemnifying Party promptly but in any event within five (5) Business Days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party. Failure to give prompt notice shall not affect the indemnification under Section 11.02 obligations hereunder in the absence of actual prejudice.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or 11.3desirable. For the purposes of such investigation, as applicable. The the Indemnified Party agrees to give make available to the Indemnifying Party prompt written notice and or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any eventagreed upon extension thereof) to the validity and amount of such claim, or any if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim, actionor, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Buyer Indemnified Party, may offset the amount of such claim, pro rata against the Notes, pursuant to the provisions set forth in Section 6.05.
(c) With respect to any third party claim as to which the Indemnified Party Claimis seeking indemnification hereunder, the Indemnifying Party will shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In expense to participate in or, if it so elects, to assume control of the defense of such caseclaim, and the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise shall cooperate fully with the Indemnifying Party in the defense or settlement of such Third Party ClaimParty, and the Indemnifying Party will reimburse the Indemnified Party subject to reimbursement for all its reasonable actual out-of-pocket costs and expenses expense (other than legal or other professional expenses) incurred in providing such access, personnel and cooperationby the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. Upon assumption If the Indemnifying Party elects to assume control of the defense of any such Third Party Claim by the Indemnifying Partythird-party claim, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will shall have the right to participate in the settlement or assume or reassume (but not control) the defense of such Third claim at its own expense. The Indemnifying Party Claimshall not, without the prior written consent of the Indemnified Party (such consent not to be unreasonably delayed, withheld or conditioned), settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Party or any subsidiary or Affiliate thereof or if such settlement or compromise does not include an unconditional release of the Indemnified Party for any liability arising out of such claim or demand or any related claim or demand.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fluid Media Networks, Inc.)
Procedures for Indemnification. As used herein8.7.1 In the case of a claim against the Sellers that may be covered at least in part by the Escrow Amount, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Buyer Indemnified Party agrees to give shall pursue such claim in accordance with the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11Escrow Agreement. In the case of a Third Party Claimclaim against the Sellers that cannot be fully satisfied by the Escrow Amount, and in the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement case of any such Third Party Claim at its own expense. In such caseclaim against the Buyer, the Indemnified Party may participate pursue whatever legal remedies may be available for recovery of Losses claimed from any indemnifying Party; provided, however, that the Buyer shall have the right to set off against the Additional Purchase Price any losses covered by this Indemnity in this Section 8, subject to the limitations and provision in Section 8.3 and Schedule 8.
1. Each Indemnified Party shall promptly give notice hereunder to the indemnifying Party and, to the extent applicable, in accordance with the Escrow Agreement, after becoming aware of any claim as to which recovery may be sought against the indemnifying Party because of the indemnity provided in this Section 8 or otherwise in this Agreement. After such defensenotice, but in such case the expenses of the Indemnified Party will be paid by shall have the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access right to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all assume at its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of own expense the defense of any such Third Party Claim action, suit or other proceeding, and any indemnifying Party, if so requested by the Indemnifying Indemnified Party, shall participate in any such action, suit or other proceeding or assume the defense thereof, with counsel satisfactory to the Indemnified Party; provided, however, that the Indemnified Party will shall have the right to participate at its own expense in the defense of any such action, suit or other proceeding. Notwithstanding the foregoing, the right to indemnification hereunder shall not paybe affected by any failure of an Indemnified Party to give such notice (or by delay by an Indemnified Party in giving such notice) unless, and then only to the extent that, the rights and remedies of the indemnifying Party shall have been prejudiced as a result of the failure to give, or permit delay in giving, such notice. The notice required hereunder shall specify the basis for the claim for indemnification to the extent ascertainable at the time of the notice. Nothing herein shall be paiddeemed to prevent an Indemnified Party from making a contingent claim for indemnification hereunder, any part of any provided the Indemnified Party has reasonable grounds to believe that the claim or demand arising from for indemnification will be made and sets forth the estimated amount of such Third claim to the extent then ascertainable.
8.7.2 The indemnifying Party Claimshall not, unless in the Indemnifying Party consents in writing defense of such claim or any Litigation resulting therefrom, consent to such payment entry of any judgment (other than a judgment of dismissal on the merits without costs) or enter into any settlement, except with the written consent, which consent will shall not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such claim or Litigation.
8.7.3 If the indemnifying Party shall not assume the defense of any such claim by a third party, or Litigation resulting therefrom, after receipt of notice from the Indemnified Party, the Indemnified Party may defend against such claim or Litigation in such manner as it deems appropriate.
8.7.4 If an indemnifying Party shall not, within 30 days after its receipt of the notice required by Section 8.7.1 hereof or in accordance with the Escrow Agreement, advise the Indemnified Party that the indemnifying Party denies the right of the Indemnified Party to indemnity in respect of the claim, then the amount of such claim shall be unreasonably withheld, delayed or conditioneddeemed to be finally determined between the Parties hereto. If the Indemnifying indemnifying Party fails to defend or fails to prosecute or withdraws from such defenseshall notify the Indemnified Party that it disputes any claim made by the Indemnified Party, then the Indemnified Party will have Parties hereto shall endeavor to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by binding arbitration in Delaware in accordance with the right to undertake Rules of the defense or settlement thereof, at the Indemnifying Party's expenseAmerican Arbitration Association. If the Indemnified Party assumes the defense Any Liability established by reason of such Third Party Claim pursuant arbitration shall be deemed to this Section and proposes to settle such be finally determined. Any claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate that is finally determined in the settlement or assume or reassume manner set forth above shall be paid promptly by the defense of such Third indemnifying Party Claimin cash.
Appears in 1 contract
Sources: Stock Purchase Agreement (Strategic Diagnostics Inc/De/)
Procedures for Indemnification. As used herein, an (a) The party (the "Indemnified Party" means a ") that may be entitled to indemnity hereunder shall give prompt notice to the party seeking indemnification for any Loss obligated to give indemnity hereunder (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of the party who is obligated to provide indemnification under Section 11.02 assertion of any claim, or 11.3the commencement of any suit, as applicableaction or proceeding in respect of which indemnity may be sought hereunder. The Any failure on the part of any Indemnified Party agrees to give the notice described in this Section 8.5(a) shall relieve the Indemnifying Party prompt written of its obligations under this Article 8 only to the extent that such Indemnifying Party has been prejudiced by the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 10 days thereof) after the Indemnified Party's receipt thereof, copies of any event, or any all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit, demand, assessment, investigation, arbitration suit or other proceeding by or in respect of a third party proceeding.
(a "Third Party Claim"b) of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will Buyer shall have the right obligation to direct, through counsel of its own choosing, assume the defense or settlement of any such Third Party Claim third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder, provided that (i) Seller shall at all times have the right, at its own expense. In option, to participate fully therein, and (ii) if Buyer does not proceed diligently to defend the third-party claim, suit, action or proceeding within 10 days after receipt of notice of such casethird-party claim, suit, action or proceeding, Seller shall have the Indemnified Party may participate in such defenseright, but in such case not the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access obligation, to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of undertake the defense of any such Third third-party claim, suit, action or proceeding.
(c) The Indemnifying Party Claim by the Indemnifying Party, shall not be required to indemnify the Indemnified Party will not pay, or permit with respect to be paid, any part amounts paid in settlement of any claim third- party suit, action, proceeding or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is investigation entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party into without the written consent of the Indemnifying Party; provided, however, that if the Indemnified Party is a Buyer Indemnified Party, which such third-party suit, action, proceeding or investigation may be settled without the consent will not be unreasonably withheld, delayed or conditioned. If of the Indemnifying Party fails on 10 days' prior written notice to defend the Indemnifying Party if such third-party suit, action, proceeding or fails investigation is then unreasonably interfering with the business or operations of Buyer and the settlement is commercially reasonable under the circumstances; and provided further, that if the Indemnifying Party gives 10 days' prior written notice to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or of a settlement thereof, at offer which the Indemnifying Party's expense. If Party desires to accept and to pay all Losses with respect thereto ("Settlement Notice") and the Indemnified Party assumes fails or refuses to consent to such settlement within 10 days after delivery of the defense Settlement Notice to the Indemnified Party, and such settlement otherwise complies with the provisions of this Section 8.5, the Indemnifying Party shall not be liable for Losses arising from such Third third-party suit, action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party Claim will consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party, if such judgment or settlement imposes any obligation or liability upon the Indemnified Party other than the execution, delivery or approval thereof and customary releases of claims with respect to the subject matter thereof.
(d) The parties shall cooperate in defending any such third-party suit, action, proceeding or investigation, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control (as defined in Exhibit 4.1) of the Indemnified Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of the indemnity granted to such Indemnified Party pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimAgreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Group Maintenance America Corp)
Procedures for Indemnification. As used herein, an "Indemnified PartyINDEMNIFIED ------------------------------- PARTY" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicableARTICLE 10, and the term "Indemnifying PartyINDEMNIFYING PARTY" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicableARTICLE 10. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party ClaimTHIRD-PARTY CLAIM") of which it has knowledge, for which such Indemnified Indemnifying Party is entitled to indemnification under this Article 11ARTICLE 10. In the case of a Third Third-Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Third-Party Claim at its own expense. In such case, case the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Third-Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Third-Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Third-Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of any such Third Third-Party Claim pursuant to this Section ARTICLE 10 and proposes to settle such claim Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Third-Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Crescent Communications Inc)
Procedures for Indemnification. As used herein, (a) If any Purchaser Indemnified Party or any Seller Indemnified Party (hereinafter an "“Indemnified Party" means ”) shall claim to have suffered a Loss (other than with respect to any claim asserted, demand or other Action by any Person who is not a party seeking to this Agreement (hereinafter a “Third-Party Claim”)) for which indemnification for any Loss (including, but not limited to attorneys fees) pursuant to is available under Section 11.2 7.02 or 11.3 hereof7.03, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such casemay be, the Indemnified Party may participate shall notify the party required to provide indemnification (hereinafter an “Indemnifying Party”) in writing of such defenseclaim: (i) with respect to claims arising under Section 7.02(a)(i) or Section 7.03(a)(i), but within the time periods provided in Section 7.01; and (ii) with respect to a Specified Indemnity Claim or a claim made pursuant to Section 7.03(a) (ii) hereof at any time after the Closing Date. The written notice to be delivered shall describe the nature of such case claim, the expenses facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the Indemnified Party will be paid time such claim is made (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party). The Indemnified Party will promptly provide In the event that within thirty (30) days after the receipt by the Indemnifying Party with access to of such a written notice from the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will shall not pay, or permit to be paid, any part of any claim or demand arising have received from such Third Party Claim, unless the Indemnifying Party consents in writing a written objection to such payment claim, such claim shall be conclusively presumed and considered to have been assented to and approved by the Indemnifying Party.
(which consent will not be unreasonably withheldb) If within the thirty (30) day period described in Section 7.04(a) above, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against shall have received from the Indemnifying Party a written notice setting forth the Indemnifying Party’s objections to such claim and the Indemnifying Party’s reasons for such objection, then the parties shall negotiate in good faith for a period of ten (10) Business Days from the date the Indemnified Party receives such objection. After such ten (10) Business Day period (or such longer period as they may agree in writing), if the parties still cannot agree on the claim, the Indemnified Party may, at any time thereafter, until the expiration of the applicable statute of limitations with respect to its claim for such liability. No such Third Party Claim may be settled by indemnification, commence legal proceedings against the Indemnifying Party without to enforce its rights to indemnification from and against any Losses described in the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this notice described in Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim7.04(a) above.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Procedures for Indemnification. As used hereina. If a claim or demand is made by a Third Party (a “Third-Party Claim”) against a LENSAR Indemnitee or a PDL Indemnitee (each, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited “Indemnitee”) as to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Party which is or may be required pursuant to Sections 5.1 or 5.2 hereof to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third-Party Claim promptly and in any event by the date that is the 15th Business Day after receipt by such Indemnitee of written notice of the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
b. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 10 Business Days after the Indemnitee’s receipt thereof), copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim. Notice under this Article 11Section 5.3 shall be provided in accordance with Section 10.6. In For the case avoidance of doubt, knowledge of a Third Third-Party Claim by a Person who is a director of both PDL and LENSAR shall not constitute notice for purposes of this Section 5.3.
c. Subject to Section 5.3(e), if a Third-Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges without condition or reservation its obligation to fully indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnifying Party will have shall, within 30 days (or sooner if the right to directnature of the Third-Party Claim so requires), through counsel notify the Indemnitee of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access intent to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimdo so, and the Indemnifying Party will reimburse shall thereafter not be liable to the Indemnified Party Indemnitee for all its reasonable out-of-pocket costs and legal or other expenses subsequently incurred by the Indemnitee in providing such access, personnel and cooperation. Upon assumption of connection with the defense thereof; provided, however, that such Indemnitee shall have the right to employ counsel to represent such Indemnitee if, in such Indemnitee’s reasonable judgment, a conflict of any interest between such Third Indemnitee and such Indemnifying Party exists in respect of such claim which would make representation of both such Parties by one counsel inappropriate, or the Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless involves substantially different defenses for the Indemnifying Party consents and the Indemnitee, and in writing to such payment (which consent will not event the fees and expenses of such single separate counsel shall be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken paid by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from assumes such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will Indemnitee shall have the right to participate in the settlement or defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume or reassume the defense thereof (other than during the period prior to the time the Indemnitee shall have given notice of the Third-Party Claim as provided above).
d. If the Indemnifying Party shall have assumed the defense of such Third a Third-Party Claim, in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third-Party Claim without the Indemnifying Party’s prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third-Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third-Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. The Indemnifying Party shall not enter into any settlement, compromise or discharge of a Third-Party Claim without the consent (not to be unreasonably withheld, conditioned or delayed) of the Indemnitee if the settlement has the effect of permitting any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against the Indemnitee, does not completely release the Indemnitee from all Liabilities and obligations with respect to such claim, includes a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnitee, or is otherwise prejudicial to the Indemnitee. If an Indemnifying Party elects not to assume the defense of a Third-Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third-Party Claim; provided that the Indemnitee shall not compromise or settle such Third-Party Claim without the consent of the Indemnifying Party, which consent is not to be unreasonably withheld, conditioned or delayed.
e. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third-Party Claim) if the Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third-Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
f. In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
g. LENSAR shall, and shall cause the other LENSAR Indemnitees to, and PDL shall, and shall cause the other PDL Indemnitees to, cooperate as may reasonably be required in connection with the investigation, defense and settlement of any Third-Party Claim. In furtherance of this obligation, the Parties agree that if an Indemnifying Party chooses to defend or to compromise or settle any Third-Party Claim, PDL or LENSAR, as the case may be, shall use its reasonable best efforts to make available to the other Party, upon written request, the former and then current directors, officers, employees and agents of PDL or any LENSAR Entity (as applicable) as witnesses and any Records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such Person, Records or other documents may reasonably be required in connection with such defense, settlement or compromise. At the request of an Indemnifying Party, an Indemnitee shall enter into a reasonably acceptable joint defense agreement.
h. The remedies provided in this Article V shall be cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies against any Indemnifying Party.
i. The provisions of this Section 5.3 (other than this Section 5.3(i)) and the provisions of Section 5.4 shall not apply to Taxes (Taxes being governed by the Tax Matters Agreement).
Appears in 1 contract
Sources: Separation and Distribution Agreement (PDL Biopharma, Inc.)
Procedures for Indemnification. As used herein(a) A Lessor Indemnitee or Lessee Indemnitee, as the case may be (for purposes of this Section 11.3, an "“Indemnified Party" means a ”), shall give the indemnifying party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to under Section 11.2 or 11.3 hereof11.1 and Section 11.2, as applicableapplicable (for purposes of this Section 11.3, an “Indemnifying Party”), prompt written notice (a “Claim Notice”) of any matter which it has determined has given or could give rise to a right of indemnification under this Lease Agreement (a “Claim”) stating the amount of the Loss, if known, and method of computation thereof, containing a reference to the term "Indemnifying Party" means provisions of this Lease Agreement in respect of which such right of indemnification is claimed or arises; provided, that the party who is obligated failure to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give such notice shall not release the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification from its obligations under this Article 11XI except to the extent, and only to the extent, the Indemnifying Party is prejudiced by such failure or to the extent the survival period, if applicable, expires prior to the giving of such notice. In the case The Indemnifying Party shall have [***] after its receipt of a Third Claim Notice to give notice to the Indemnified Party, in writing, either denying its obligations to, or agreeing to fully, indemnify and defend the Claim.
(b) If the Indemnifying Party Claimnotifies the Indemnified Party that it agrees to fully indemnify and defend the Indemnified Party against the Claim in accordance with Section 11.3(a), then the Indemnifying Party will have the right to direct, through assume and thereafter conduct (at its sole expense) the defense of the Claim with counsel of its own choosingchoice reasonably satisfactory to the Indemnified Party; provided, that the defense or settlement Indemnifying Party shall not consent to the entry of any such Third Party judgment or enter into any settlement with respect to the Claim at its own expense. In such case, without the Indemnified Party may participate in such defense, but in such case the expenses prior written consent of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access (not to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) unless the judgment or unless a final judgment from which no appeal may be taken by proposed settlement involves only the payment of money damages and (i) does not impose an injunction or on behalf of other equitable relief upon the Indemnified Party is entered against the and (ii) includes as an unconditional term thereof giving of a release from all liability with respect to such Claim by each claimant or plaintiff to each Indemnified Party for that is the subject of such liability. No such Third Party Claim may be settled by Claim.
(c) If (i) the Indemnifying Party without fails to assume the written consent defense of a Claim in accordance with Section 11.3(a), (ii) an Indemnified Party determines in good faith that an adverse determination with respect to the proceeding giving rise to such Claim for indemnification would be materially detrimental to or injure the Indemnified Party’s reputation or future business prospects, (iii) the Claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iv) the Claim seeks an injunction or equitable relief against the Indemnified Party, (v) under applicable standards of professional conduct, a conflict of interest on any significant issue related to such proceeding exists between the Indemnifying Party, on the one hand, and an Indemnified Party, on the other hand, or (vi) the Indemnifying Party is failing to vigorously prosecute or defend such Claim, then, in each case, upon notice to the Indemnifying Party, the Indemnified Party may, in its sole discretion, retain counsel satisfactory to it to assume such defense on behalf of and for the sole account and risk of the Indemnifying Party, and in the case of clauses (i) through (vi) the Indemnifying Party shall pay all reasonable fees and expenses of such counsel for the Indemnified Party, and the Indemnifying Party shall cooperate in the defense of any such matter. In the event that the Indemnified Party assumes the conduct and control of the defense of a Claim, then the Indemnifying Party shall not be liable for any settlement effected without its prior written consent (which consent will shall not be unreasonably withheld, delayed conditioned or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimdelayed).
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means Whenever a party seeking indemnification claim shall arise for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.311.1 above, as applicable. The Indemnified Party agrees to give with the Indemnifying Party prompt written notice exception of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or claims for litigation expenses in respect of a third litigation as to which a notice of claim, as provided below in this Section 11.2, has previously been given, which expenses shall be funded on an ongoing basis, the party entitled to indemnification (a the "Third Party ClaimIndemnified Party") shall promptly notify the party from whom indemnification is sought (the "Indemnifying Party") of which it has knowledgesuch claim and, when known, the facts constituting the basis for which such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than 10 business days prior to the time any response to the asserted claim is entitled required, if possible, and in any event within 5 business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability for indemnification under this Article 11it may have if and to the extent that the Indemnifying Party shall not have been prejudiced by such omission. In the case event of any such claim for indemnification resulting from or in connection with a Third Party Claimclaim or Legal Proceeding by a third party, the Indemnifying Party will have the right to directmay, through counsel of at its own choosingsole cost and expense, assume the defense or settlement of any such Third thereof; provided, however, that the Indemnifying Party Claim at shall first have agreed in writing that it does not and will not contest its own expense. In such case, responsibility for indemnifying the Indemnified Party may participate in respect of Losses attributable to such defenseclaim or Legal Proceeding; and, but in such case provided, further, that Seller shall not be entitled to assume the expenses defense of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Indemnified Party will be paid by the Indemnified PartyClosing Date. The Indemnified Party will promptly provide the If an Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assumes the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party ClaimLegal Proceeding, unless the Indemnifying Party consents shall be entitled to select counsel and take all steps necessary in writing to such payment (which consent will not the defense thereof; provided, however, that no settlement shall be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party made without the prior written consent of the Indemnified Party, which consent will shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the proposed amount of such settlement); provided, further, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend does not assume the defense of any such claim or fails to prosecute or withdraws from such defenseLegal Proceeding in accordance with the terms hereof, then the Indemnified Party will have may defend (and, in the right case of any claim or Legal Proceeding against Buyer for Taxes with respect to undertake a period ending after the defense Closing Date, shall defend) against such claim or settlement thereofLegal Proceeding in such manner as it may deem appropriate, at including, but not limited to, settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party's expense. If , which consent shall not be unreasonably withheld) on such terms as the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretomay deem appropriate, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 11.2; provided, however, that if the Indemnified Party does not obtain the prior written consent of the Indemnifying Party to any such settlement, and such written consent is not unreasonably withheld by the Indemnifying Party, the Indemnified Party shall not be entitled to indemnification hereunder from such Indemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 11.2 to the contrary, if, in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 11.2, (i) the Indemnifying Party shall not have promptly employed counsel reasonably satisfactory to the Indemnified Party or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall not have the right to participate in the settlement or assume or reassume direct the defense of any such Third Party Claimaction on behalf of the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. As used herein, an (a) The party (the "Indemnified Party" means a ") that may be entitled to indemnity hereunder shall give prompt notice to any party seeking indemnification for any Loss obligated to give indemnity hereunder (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of the party who is obligated to provide indemnification under Section 11.02 assertion of any claim, or 11.3the commencement of any suit, as applicableaction or proceeding in respect of which indemnity may be sought hereunder. The Any failure on the part of any Indemnified Party agrees to give the notice described in this Section 8.4(a) shall relieve the Indemnifying Party prompt written of its obligations under this Article VIII only to the extent that such Indemnifying Party has been prejudiced by the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 10 days thereof) after the Indemnified Party's receipt thereof, copies of any event, or any all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit, demand, assessment, investigation, arbitration suit or other proceeding by or in respect of a third party proceeding.
(a "Third Party Claim"b) of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will The Parent shall have the right obligation to direct, through counsel of its own choosing, assume the defense or settlement of any third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder, provided that (i) the Seller Parties shall at all times have the right, at their option, to participate fully therein, and (ii) if the Parent does not proceed diligently to defend the third- party claim, suit, action or proceeding within 10 days after receipt of notice of such Third Party Claim at its own expense. In such casethird-party claim, suit, action or proceeding, the Indemnified Party may participate in such defenseSeller Parties shall have the right, but in such case not the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access obligation, to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of undertake the defense of any such Third third-party claim, suit, action or proceeding.
(c) The Indemnifying Party Claim by the Indemnifying Party, shall not be required to indemnify the Indemnified Party will not pay, or permit with respect to be paid, any part amounts paid in settlement of any claim third- party suit, action, proceeding or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is investigation entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party into without the written consent of the Indemnifying Party; provided, however, that if the Indemnified Party is a Parent Indemnified Party, which such third-party suit, action, proceeding or investigation may be settled without the consent will not be unreasonably withheld, delayed or conditioned. If of the Indemnifying Party fails on 10 days' prior written notice to defend the Indemnifying Party if such third-party suit, action, proceeding or fails investigation is then unreasonably interfering with the business or operations of Buyer and the settlement is commercially reasonable under the circumstances; and provided further, that if the Indemnifying Party gives 10 days' prior written notice to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or of a settlement thereof, at offer which the Indemnifying Party's expense. If Party desires to accept and to pay all Losses with respect thereto ("Settlement Notice") and the Indemnified Party assumes fails or refuses to consent to such settlement within 10 days after delivery of the defense Settlement Notice to the Indemnified Party, and such settlement otherwise complies with the provisions of this Section 8.4, the Indemnifying Party shall not be liable for Losses arising from such Third third-party suit, action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party Claim will consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party, if such judgment or settlement imposes any obligation or liability upon the Indemnified Party other than the execution, delivery or approval thereof and customary releases of claims with respect to the subject matter thereof.
(d) The parties shall cooperate in defending any such third-party suit, action, proceeding or investigation, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of the Indemnified Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of the indemnity granted to such Indemnified Party pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimAgreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Group Maintenance America Corp)
Procedures for Indemnification. As used hereinIf any action, an "Indemnified Party" means suit or proceeding ------------------------------ shall be commenced against, or any claim or demand be asserted against, Seller or Buyer, as the case may be, in respect of which Seller or Buyer is entitled to demand indemnification under this Section 11, then as a condition precedent thereto, the party seeking indemnification for any Loss (including, but not limited "Indemnitee") shall promptly notify the other party ("Indemnitor") in writing to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicablethat effect, and with reasonable particularity and with reference to the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicableapplicable provision(s) of this Agreement. The Indemnified Party agrees Indemnitor shall have the right to give assume the Indemnifying Party prompt written notice entire control of any eventthe defense, compromise or any claim, settlement of such action, suit, proceeding or claim and including the selection of counsel, subject to the right of the Indemnitee to participate (at its expense and with counsel of its choice) in the defense, compromise or settlement of such action, suit, proceeding, claim or demand, assessmentand in connection therewith, investigationthe Indemnitee shall cooperate fully at Indemnitor's expense in all respects with the Indemnitor in any such defense, arbitration compromise or other proceeding settlement. The Indemnitor will not compromise or settle any such action, suit, proceeding, claim or demand without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld or delayed. So long as the Indemnitor is defending in good faith any such action, suit, proceeding, claim or demand asserted by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In against the case of a Third Party ClaimIndemnitee, the Indemnifying Party Indemnitee shall not settle or compromise such action, suit, proceeding, claim or demand without the prior written consent of the Indemnitor, which consent will have not be unreasonably withheld or delayed. The Indemnitee shall make available to the right Indemnitor or its agents all records and other materials in the Indemnitee's possession reasonably required for contesting any third party claim or demand. If the Indemnitor shall fail to directpromptly and adequately defend any such action, suit, proceeding, claim or demand, then the Indemnitee may defend, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such caseaction, the Indemnified Party may participate in such defensesuit, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimproceeding, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless and (so long as Indemnitee gives the Indemnifying Party consents in writing to such payment Indemnitor at least ten (which consent will not be unreasonably withheld, delayed or conditioned10) or unless a final judgment from which no appeal may be taken by or on behalf days' notice of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent terms of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If proposed settlement thereof and permits the Indemnifying Party fails Indemnitor to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at thereof if Indemnitor objects to the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes proposed settlement) to settle such action, suit, proceeding, claim prior or demand and to a final judgment thereon or to forgo appeal with respect thereto, then recover from the Indemnified Party will give Indemnitor the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense amount of such Third Party ClaimLosses.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) Other than with respect to Third-Party Claims, an "Indemnified Party" means which shall be governed by Section 4.4(b), a party seeking indemnification for any Loss Remainco Indemnitee or a Spinco Indemnitee (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereofeach, as applicable, and an “Indemnitee”) shall notify in writing, with respect to any matter that such Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement, the term "Party which is or may be required pursuant to this Article IV to make such indemnification (the “Indemnifying Party" means ”), within thirty (30) days of such determination, stating in such written notice (i) reasonable details of such Indemnifiable Loss, (ii) the party who amount of the Indemnifiable Loss claimed, if known (and if not known but reasonably estimable, a reasonable estimate of such amount), (ii) to the extent practicable, method of computation of such Indemnifiable Loss and (iii) reference to the provisions of this Agreement in respect of which such right of indemnification is obligated claimed by such Indemnitee or arises; provided, however, that the failure to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give such written notice shall not release the Indemnifying Party prompt written from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a Party or an Affiliate of a Party (a “Third-Party Claim”) as to which such Indemnitee is or reasonably expects to be entitled to indemnification pursuant to this Agreement, such Indemnitee shall promptly notify the Indemnifying Party in writing (which shall include copies of all notices and documents received by the Indemnitee relating to the Third-Party Claim), and in reasonable detail, of the Third-Party Claim (and in any event within the earlier of (x) thirty (30) days within such Indemnitee receiving notice of such Third-Party Claim or (y) two (2) Business Days prior to the final date of the applicable response period under such Third-Party Claim) after receipt by such Indemnitee of notice of the Third-Party Claim; provided, however, that the failure to provide notice of any eventsuch Third-Party Claim pursuant to this or the preceding sentence shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, or the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any claimevent within ten (10) Business Days) after the Indemnitee’s receipt thereof, actioncopies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim; provided, suithowever, demand, assessment, investigation, arbitration or other proceeding by or that the failure to deliver such notices and documents of shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(c) Other than in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of indemnification by a Third beneficiary Party Claimof a guarantor Party pursuant to Section 2.11(d) (the defense of which shall be controlled by the beneficiary Party), the Indemnifying Party will have the right shall be entitled, if it so chooses, to direct, through counsel of its own choosing, assume the defense or settlement of any such Third Party Claim at its own expense. In such casethereof, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in if it does not assume the defense or settlement of such Third Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred to participate in providing such access, personnel and cooperation. Upon assumption of the defense of any Third-Party Claim in accordance with the terms of Section 4.5 at such Third Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the Indemnitee, within thirty (30) days of the receipt of an indemnification notice from such Indemnitee; provided, however, that the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim if (x) in the reasonable judgment of the Indemnitee, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s) in the defense of such Third-Party Claim by the Indemnifying Party, (y) the Indemnified party making such Third-Party will not payClaim is a Governmental Body with regulatory or other authority over the Indemnitee or any of its material assets or (z) the Third-Party Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to have a material and adverse effect on the Indemnitee’s business; provided further, that (other than with respect to any indemnification provided in Section 4.2(f)), Spinco shall have the right to assume the defense or permit to be paid, any part control of any claim Third-Party Claim involving any Spinco Asbestos Product Liability or demand arising from such Third Spinco Environmental Matter, and in the case of any Spinco Environmental Matter undertake or take over any associated environmental investigation, monitoring or remediation activities, with counsel, consultants or contractors of recognized standing and competence selected by Spinco and reasonably acceptable to Remainco. In connection with the Indemnifying Party’s defense of a Third-Party Claim, unless such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, at its own expense and, in any event, shall reasonably cooperate with the Indemnifying Party consents in writing such defense and make available to the Indemnifying Party all witnesses, pertinent materials and information (subject to Section 5.7 as applicable) in such payment (which consent will not be unreasonably withheld, delayed Indemnitee’s possession or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for under such liability. No such Third Party Claim may be settled Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. To the extent permitted by law, no Indemnifying Party shall settle or compromise any Third-Party Claim without the written consent of the Indemnified PartyIndemnitee, which such consent will not to be unreasonably withheld, delayed conditioned or conditioneddelayed, unless such settlement (A) completely and unconditionally releases the Indemnitee in connection with such matter, (B) provides relief consisting solely of money damages borne by the Indemnifying Party and (C) does not involve any admission by the Indemnitee of any wrongdoing or violation of a Legal Requirement.
(d) If an Indemnifying Party does not (or is not entitled to) assume responsibility for defending a Third-Party Claim within the period specified in this Section 4.4, such Indemnitee may defend such Third-Party Claim. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party fails shall reasonably cooperate with the Indemnitee in such defense and make available to defend the Indemnitee all witnesses, pertinent materials and information (subject to Section 5.7 as applicable) in such Indemnifying Party’s possession or fails to prosecute under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee. To the extent permitted by law, no Indemnitee may settle or withdraws from such defense, then compromise any Third-Party Claim without the Indemnified Party will have the right to undertake the defense or settlement thereof, at prior written consent of the Indemnifying Party's expense. If , such consent not to be unreasonably withheld, conditioned or delayed.
(e) Except as otherwise set forth in Section 5.6 or to the Indemnified extent set forth in any Ancillary Agreement or the Merger Agreement, following the Closing, the indemnification provisions of this Article IV shall be the sole and exclusive remedy of any Party assumes or member of its Group for any monetary damages or Indemnifiable Losses arising out of, relating to or resulting from this Agreement, the defense Merger Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby and each Party expressly waives and relinquishes any and all rights, claims or remedies such Party or any member of such Third Party Claim pursuant its Group may have with respect to the foregoing other than under this Article IV against any Indemnifying Party; provided, however, that this Section and proposes 4.4(e) shall not limit any equitable remedies available to settle such claim prior to a final judgment thereon any Party under this Agreement, the Merger Agreement or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimany Ancillary Agreement.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Rexnord Corp)
Procedures for Indemnification. As used herein, (a) In order for an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of be entitled to any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or indemnification provided for under this Agreement in respect of a third party written claim, suit or written demand made by any Person against the Indemnified Party (a "“Third Party Claim") of which it has knowledge”), for which such Indemnified Party is must notify the indemnifying party (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third Party Claim and the facts known by the Indemnified Party relating thereto as promptly as reasonably possible after receipt by such Indemnified Party of notice of the Third Party Claim; provided, however, that failure to give such notification on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) delivered by such Person to the Indemnified Party relating to the Third Party Claim.
(b) If the Indemnifying Party, subject to the limitations set forth in this Article VII, has conceded liability to indemnify the Indemnified Party with respect to all Losses relating to such Third Party Claim, then the Indemnifying Party shall have 20 days after receipt of the Indemnified Party’s notice of a given Third Party Claim to elect, at his, her or its option, to assume the defense of any such Third Party Claim, in which case:
(i) the attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs incurred by the Indemnifying Party in connection with defending such Third Party Claim shall be payable by such Indemnifying Party;
(ii) the Indemnified Party shall not be entitled to indemnification under this Article 11. In be indemnified for any costs or expenses incurred by the case Indemnified Party in connection with the defenses of such Third Party Claim following the Indemnifying Party’s assumption of such defense, except for actual costs incurred in connection with the Indemnifying Party’s requests for cooperation, which costs shall be reimbursed by the Indemnifying Party;
(iii) the Indemnified Party shall be entitled to monitor such defense at his, her or its sole expense; and
(iv) the Indemnified Party shall not enter into any agreement providing for the settlement or compromise of such Third Party Claim or the consent to the entry of a judgment with respect to such Third Party Claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnifying Party does not give notice to the Indemnified Party of his, her or its election to either assume or reject the defense of such Third Party Claim within 20 days after receipt of notice of such Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of shall be bound for all purposes by any determination made in such Third Party Claim at its own expense. In such case, or any compromise or settlement effected by the Indemnified Person.
(c) If (i) the Indemnifying Party has not conceded liability to indemnify the Indemnified Party may participate in with respect to all Losses relating to such defenseThird Party Claim, but in or (ii) if the Indemnifying Party elects not to defend such case the expenses of Third Party Claim, then (A) the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any shall diligently defend such Third Party Claim during normal business hours Claim, and will otherwise cooperate with (B) the Indemnifying Indemnified Party shall, subject to the limitations and conditions set forth in the defense or settlement this Article VII, be entitled to indemnification under this Article VII in respect of such Third Party Claim, and provided, however, that the Indemnified Party shall have no right to seek indemnification under this Article VII in respect of such Third Party Claim for any agreement providing for the settlement or compromise of such Third Party Claim or the consent to the entry of a judgment with respect to such Third Party Claim entered into without the prior written consent of the Indemnifying Party will reimburse (which consent shall not be unreasonably withheld, conditioned or delayed).
(d) If any Indemnified Party asserts the existence of a claim giving rise to Losses (but excluding Third Party Claims), such Party shall give written notice to the Indemnifying Party. Such written notice shall state that it is being given pursuant to this Section 7.4, specify, in reasonable detail, the nature and amount of the claim (to the extent they are capable of determination). If such Indemnifying Party, within 60 days after receipt of such notice by Indemnifying Party and Indemnifying Party’s attorney, shall not give written notice to such Indemnified Party announcing such Indemnifying Party’s intent to contest such assertion of such Indemnified Party, such assertion shall be deemed accepted and the amount of such claim shall be deemed a valid claim and constitute Losses for all purposes under this Article VII. If, however, such Indemnifying Party contests such assertion of a claim by giving such written notice to the Indemnified Party for all its reasonable out-of-pocket within said period, then the Parties shall act in good faith to reach agreement regarding such claim. If litigation or arbitration shall arise with respect to any such claim, the prevailing Party shall be entitled to reimbursement of costs and expenses incurred in providing connection with such access, personnel litigation or arbitration (including reasonable attorneys’ fees and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section expenses and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claiminvestigation costs).
Appears in 1 contract
Procedures for Indemnification. As used hereinThis Section 8 provides the sole and exclusive remedies for recovery by an Indemnified Party (as defined below) from the Indemnifying Party (as defined below) based upon the breach or inaccuracy of or failure to comply with any of the warranties, an representations, conditions, covenants or agreements of the Indemnifying Party contained in this Agreement or in any agreement or document delivered pursuant hereto or in connection herewith, other than the Registration Rights Agreement and the Amendment. In the event that any claim is asserted against any party or parties hereto, or any party or parties hereto is made a party defendant in any action or proceeding, and such claim, action or proceeding involves a matter which is the subject of this indemnification, then such party or parties (collectively, the "Indemnified Party" means a ") shall promptly give written notice to the other party seeking indemnification for any Loss or parties hereto (includingcollectively, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of such claim, action or proceeding, specifying in reasonable detail the party who is obligated to provide basis for indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give and providing the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in such information with respect of a third party (a "Third Party Claim") of which it has knowledge, for which thereto as reasonably requested and such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will shall have the right to direct, through counsel of its own choosing, join in the defense of said claim, action or settlement proceeding at such Indemnifying Party's own cost and expense and, if the Indemnifying Party agrees in writing to defend such claim, then at the option of any the Indemnifying Party, such Third Indemnifying Party Claim at its own expense. In may take over the defense of such claim, action or proceeding, except that, in such case, the Indemnified Party may participate shall have the right to join in such defensethe defense of said claim, but in such case the expenses of the action or proceeding at its own cost and expense. An Indemnified Party will be paid by shall not settle or compromise any action or proceeding without the Indemnified Party. The Indemnified Party will promptly provide prior written consent of the Indemnifying Party with access to the Indemnified Party's records and personnel relating shall consent to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense compromise or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled approved by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If if the Indemnifying Party fails to defend shall pay or fails to prosecute or withdraws from such defense, then make adequate provision for the Indemnified Party will have the right to undertake the defense or settlement full amount thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Esquire Communications LTD)
Procedures for Indemnification. As used herein, an "(a) The Indemnified Party" means a party Party seeking indemnification for any Loss under this Agreement shall promptly notify the party against whom indemnification is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of the party who is obligated to provide indemnification under Section 11.02 assertion of any claim, or 11.3the commencement of any action, as applicable. The Indemnified Party agrees to suit or proceeding by any Third Party, in respect of which indemnity may be sought hereunder and will give the Indemnifying Party prompt such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such notice shall not relieve the Indemnifying Party of any liability hereunder (unless the Indemnifying Party has suffered material prejudice by such failure). The Indemnifying Party shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of any event, receipt of notice from the Indemnified Party of the commencement of or assertion of any claim, action, suit, demand, assessment, investigation, arbitration suit or other proceeding by or a Third Party in respect of a third party which indemnity may be sought hereunder (a "Third Third-Party Claim"), to assume the defense and control the settlement of such Third-Party Claim that (i) of which it has knowledge, involves (and continues to involve) solely money damages or (ii) involves (and continues to involve) claims for which such both money damages and equitable relief against the Indemnified Party is entitled to indemnification under this Article 11. In that cannot be severed, where the case of a claims for money damages are the primary claims asserted by the Third Party Claimand the claims for equitable relief are incidental to the claims for money damages, and where the Indemnified Party reasonably determines (and continues to reasonably determine) that defense of the claim by the Indemnifying Party will not have a Material Adverse Effect on the Indemnified Party.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to directparticipate in (but not control), through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense, the defense of any Third-Party Claim that the other is defending, as provided in this Agreement.
(c) The Indemnifying Party, if it has assumed the defense of any Third-Party Claim as provided in this Agreement, shall not consent to a settlement of, or the entry of any judgment arising from, any such Third- Party Claim without the Indemnified Party's prior written consent (which consent shall not be unreasonably withheld) unless such settlement or judgment relates solely to monetary damages which the Indemnifying Party will pay in full. In such caseThe Indemnifying Party shall not, without the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, enter into any compromise or settlement that (i) commits the Indemnified Party may participate in to take, or to forbear to take, any action or (ii) does not provide for a complete release by such defense, but in such case the expenses Third Party of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide shall have the Indemnifying sole and exclusive right to settle any Third-Party with access Claim, on such terms and conditions as it deems reasonably appropriate, to the extent such Third- Party Claim involves equitable or other nonmonetary relief against the Indemnified Party's records , and personnel relating shall have the right to settle any such Third Third-Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in involving money damages for which Seller has not assumed the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit pursuant to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without this Section 9.4 with the written consent of the Indemnified Indemnifying Party, which consent will shall not be unreasonably withheld, delayed withheld or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimdelayed.
Appears in 1 contract
Procedures for Indemnification. As used hereinWhenever a claim shall arise for indemnification under this Article 11, an "except as otherwise provided in Section 11.4, the parties shall proceed as provided as set forth in this Section 11.3. The party entitled to indemnification (the “Indemnified Party" means a ”) shall promptly notify the party seeking from which indemnification for any Loss is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means ”) of such claim and, when known, the party who is obligated to provide indemnification under Section 11.02 or 11.3facts constituting the basis for such claim; provided, as applicable. The Indemnified Party agrees to give however, that in the Indemnifying Party prompt written notice event of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by claim for indemnification hereunder resulting from or in respect of connection with any claim or Legal Proceeding by a third party (a "“Third Party Claim") of which it has knowledge”), for which such the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten Business Days prior to the time any response to the Third Party Claim is entitled to indemnification under this Article 11required, and in any event within five Business Days following receipt of notice thereof. In the case event of a any such Third Party Claim, the Indemnifying Party will have the right to directmay, through counsel of at its own choosingsole cost and expense, assume the defense or settlement of any such the Third Party Claim at its own expense. In such caseby written notice within 30 calendar days, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by using counsel that is reasonably satisfactory to the Indemnified Party. The failure of an Indemnified Party will promptly provide to give timely notice shall not affect the right to indemnification of the Indemnified Party except to the extent that the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the demonstrates actual prejudice. If an Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assumes the defense of any such Third Party Claim, the Indemnifying Party shall be entitled to take all steps necessary in the defense thereof, including any settlement; provided, however, that the Indemnified Party may, at its own expense, participate in any Legal Proceeding with respect to such Third Party Claim by the with counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the defense of any Third Party Claim as provided herein, shall not, however: (i) consent to, or enter into, any compromise or settlement of the Third Party Claim which commits the Indemnified Party will not payto take, or permit to be paidforbear from taking, any part action or does not provide for a full and complete written release by such third party of the Indemnified Party, or (ii) consent to the entry of any claim or demand judgment in any Legal Proceeding that does not relate solely to monetary damages arising from such the Third Party Claim, unless in any such case, without the Indemnifying Party consents in writing to such payment (Indemnified Party’s prior written consent, which consent will shall not be unreasonably withheld, delayed conditioned or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any Third Party Claim in respect of which indemnity is entered against sought pursuant to this Article 11, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information. So long as the Indemnifying Party is in good faith defending any Third Party Claim, the Indemnified Party for such liability. No shall not compromise or settle such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Indemnifying Party, which consent will shall not be unreasonably withheld, delayed conditioned or conditioneddelayed. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defensedoes not assume the defense of any Third Party Claim in accordance with this Section 11.3, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of may defend against such Third Party Claim pursuant to this Section and proposes to settle in such manner as it may deem appropriate, including settling such claim or litigation (after giving prior written notice of the same to a final judgment thereon the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or to forgo appeal with respect thereto, then delayed) on such terms as the Indemnified Party will give the Indemnifying Party prompt written notice thereof may reasonably deem appropriate, and the Indemnifying Party will have shall promptly indemnify the right to participate Indemnified Party in accordance with the settlement or assume or reassume the defense provisions of such Third Party Claimthis Article 11.
Appears in 1 contract
Procedures for Indemnification. As used herein, The following procedures shall govern and be a condition to the indemnification obligations arising out of this Section 6.7:
(i) Upon receipt by an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written of notice of any event, or any claim, action, suit, demandproceeding, assessmentclaim, investigation, arbitration demand or other proceeding by or in respect of assessment from a third party (which may give rise to a "Third Party Claim") of which it has knowledge, claim for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, from the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such caseParty, the Indemnified Party may participate shall give prompt, written notice thereof to the Indemnifying Party indicating in reasonable detail the nature of such defenseclaim and the basis therefor, but in provided that the failure to give such case notice shall not be a condition to the expenses of indemnification obligations hereunder except to the Indemnified extent that the Indemnifying Party will demonstrates actual damage caused by such failure. The Indemnifying Party shall be paid entitled to assume and control such defense at its expense with counsel selected by it and reasonably acceptable to the Indemnified Party. The Indemnified Party will promptly provide shall be entitled to participate therein at its own expense after such assumption.
(ii) With respect to third party claims or actions as to which the Indemnifying Party with access shall not have exercised its right to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in assume the defense or settlement thereof within a reasonable amount of such Third Party Claimtime (but not more than thirty (30) days after notice), and the Indemnifying Party will reimburse the Indemnified Party for all shall assume and control the defense of and contest such action with such counsel as the Indemnified Party may choose that is reasonably acceptable to the Indemnifying Party. The Indemnifying Party shall be entitled, at its reasonable out-of-pocket costs and expenses incurred own expense, to participate in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by action or claim. In the event the Indemnifying PartyParty elects not to participate in the defense of such action or claim, the Indemnified Party will not pay, shall have full rights to dispose of such action and enter into any compromise or permit to settlement; provided that such compromise or settlement shall be paid, any part of any claim or demand arising from such Third reasonable under the circumstances and in good faith.
(iii) Both the Indemnified Party Claim, unless and the Indemnifying Party consents shall cooperate with one another in writing to good faith in connection with the defense, compromise or settlement of any third party claim or action. Neither shall dispose of, compromise or settle any such payment (claim or action in a manner without the prior written consent of the other party, which consent will shall not be unreasonably withheld.
(iv) With respect to any claim, delayed other than a third party claim or conditioned) or unless a final judgment from action, for which no appeal indemnity may be taken by or on behalf of sought hereunder, the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by shall give prompt, written notice thereof to the Indemnifying Party without indicating in reasonable detail the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense nature of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimbasis therefor.
Appears in 1 contract
Sources: Merger Agreement (Ensys Environmental Products Inc /De/)
Procedures for Indemnification. As used hereinIf an Indemnified Party intends to seek indemnification pursuant to this Article IV, an "such Indemnified Party shall promptly provide written notice to the party from whom indemnification is being sought (the “Indemnifying Party”), in writing in accordance with Section 7.1 of such claim describing such claim in reasonable detail including the sections of this Agreement which form the basis for such claim, copies of all material written evidence thereof and the estimated amount of the Indemnifiable Losses that have been or may be sustained by the Indemnified Party" means a party seeking indemnification for any Loss (including; provided, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and that the term "Indemnifying Party" means the party who is obligated failure to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give such notice shall only affect the obligations of the Indemnifying Party prompt written notice unless and to the extent it is actually materially prejudiced thereby. In particular, in case of any eventinvestigation or audit for which indemnification of an Indemnified Party under this Article IV is reasonably likely, such Indemnified Party shall inform the Indemnifying Party at the commencement of such investigation or any claimaudit, actionto the extent practical, suit, demand, assessment, investigation, arbitration or other proceeding so that the Indemnifying Party may participate therein. In the event that such claim involves a claim by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such against the Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party ClaimParty, the Indemnifying Party shall have 20 days after receipt of such notice to decide whether it will have the right to directundertake, conduct and control, through counsel of its own choosing, the defense or settlement of any such Third Party Claim choosing and at its own expense. In , the settlement or defense thereof, and if it so decides, the Indemnified Party shall cooperate with the Indemnifying Party in connection with the settlement or defense of such caseclaim; provided, however, that the Indemnified Party may participate in such defensesettlement or defense through counsel chosen by it; provided, but further, that the fees and expenses of such counsel shall be borne by the Indemnified Party; provided, further, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in such case the expenses reasonable judgment of the Indemnified Party will for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be paid by entitled to retain one law firm at the Indemnifying Party’s expense. Notwithstanding anything in this Section 4.4 to the contrary, the Indemnifying Party may, without the consent of the Indemnified Party. The , settle or compromise any action or consent to the entry of any judgment which is solely for money damages, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party will promptly provide of a duly executed written release of the Indemnified Party from all liability in respect of such action, which release shall be reasonably satisfactory in form and substance to counsel for the Indemnified Party, and which does not involve an admission of guilt or liability. So long as the Indemnifying Party with access has agreed to undertake, conduct and control the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense settlement or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Partyclaim and is contesting any such claim in good faith, the Indemnified Party will shall not pay, pay or permit to be paid, settle any part of any such claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Indemnifying Party, which consent will shall not be unreasonably withheld, delayed withheld or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimdelayed.
Appears in 1 contract
Procedures for Indemnification. As used herein, Promptly after receipt by an "Indemnified Party" means indemnified party pursuant to the provisions of Section 7.1 or Section 7.2 of notice of the commencement of any action by a person not a party seeking indemnification for any Loss (includingto this Agreement involving the subject matter of the foregoing indemnity provisions, but not limited such indemnified party shall, if a claim thereof is to attorneys fees) be made against an indemnifying party pursuant to the provisions of Section 11.2 7.1 or 11.3 hereofSection 7.2, as applicable, and promptly notify such indemnifying party of the term "Indemnifying Party" means commencement thereof; but the omission to so notify such indemnifying party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of will not relieve it from any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of liability which it has knowledge, for which may have to the indemnified party to the extent the indemnifying party was not prejudiced by such Indemnified Party is entitled to indemnification under this Article 11omission. In case such action is brought against an indemnified party and it notifies the case indemnifying party of a Third Party Claimthe commencement thereof, the Indemnifying Party will indemnifying party shall have the right to directparticipate in, through and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict of its own choosinginterest which would prevent counsel for the indemnifying party from also representing the indemnified party, the defense or settlement of any such Third Party Claim at its own expense. In such case, indemnified party shall have the Indemnified Party may right to select separate counsel to participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimaction on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, and the Indemnifying Party will reimburse indemnifying party shall not be liable to the Indemnified Party indemnified party pursuant to the provisions of such Section 7.1 or Section 7.2 for all its any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable out-of-pocket costs and expenses incurred of investigation, unless (a) the indemnified party shall have employed counsel in providing such accessaccordance with the proviso of the preceding sentence, personnel and cooperation(b) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (c) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. Upon assumption of No indemnifying party, in the defense of any such Third Party Claim by claim or litigation, shall, except with the Indemnifying Partyconsent of each indemnified party, the Indemnified Party will not pay, or permit consent to be paid, any part entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release from all liability in respect to such claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimlitigation.
Appears in 1 contract
Procedures for Indemnification. As used herein, (a) In order for an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of be entitled to any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or indemnification provided for under this Agreement in respect of a third party written claim, suit or written demand made by any Person against the Indemnified Party (a "“Third Party Claim") of which it has knowledge”), for which such Indemnified Party is must notify the indemnifying party (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third Party Claim and the facts known by the Indemnified Party relating thereto as promptly as reasonably possible after receipt by such Indemnified Party of notice of the Third Party Claim; provided, however, that failure to give such notification on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) delivered by such Person to the Indemnified Party relating to the Third Party Claim.
(b) If the Indemnifying Party, subject to the limitations set forth in this Article VII, has conceded liability to indemnify the Indemnified Party with respect to all Losses relating to such Third Party Claim, then the Indemnifying Party shall have 120 days after receipt of the Indemnified Party’s notice of a given Third Party Claim to elect, at his, her or its option, to assume the defense of any such Third Party Claim, in which case:
(i) the attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs incurred by the Indemnifying Party in connection with defending such Third Party Claim shall be payable by such Indemnifying Party;
(ii) the Indemnified Party shall not be entitled to indemnification under this Article 11. In be indemnified for any costs or expenses incurred by the case Indemnified Party in connection with the defenses of such Third Party Claim following the Indemnifying Party’s assumption of such defense, except for actual out-of-pocket costs incurred in connection with the Indemnifying Party’s requests for cooperation, which costs shall be reimbursed by the Indemnifying Party;
(iii) the Indemnified Party shall be entitled to monitor such defense at his, her or its sole expense; and
(iv) the Indemnified Party shall not enter into any agreement providing for the settlement or compromise of such Third Party Claim or the consent to the entry of a judgment with respect to such Third Party Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not give notice to the Indemnified Party of his, her or its election to either assume or reject the defense of such Third Party Claim within 120 days after receipt of notice of such Third Party Claim, the Indemnifying Party will have shall be bound for all purposes by any determination made in such Third Party Claim, provided that the right Indemnified Party shall provide not less than 20 days’ advance notice of, and an opportunity to directconsult with respect to, through counsel of its own choosing, the defense any compromise or settlement of any such Third Party Claim at its own expense. In such case, Claim.
(c) If (i) the Indemnifying Party has not conceded liability to indemnify the Indemnified Party may participate in with respect to all Losses relating to such defenseThird Party Claim, but in or (ii) if the Indemnifying Party elects not to defend such case the expenses of Third Party Claim, then (A) the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any shall diligently defend such Third Party Claim during normal business hours Claim, and will otherwise cooperate with (B) the Indemnifying Indemnified Party shall, subject to the limitations and conditions set forth in the defense or settlement this Article VII, be entitled to seek indemnification under this Article VII in respect of such Third Party Claim, and the Indemnifying Party will reimburse provided, however, that the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred shall have no right to seek indemnification under this Article VII in providing such access, personnel and cooperation. Upon assumption respect of the defense of any such Third Party Claim by for any agreement providing for the Indemnifying Party, the Indemnified Party will not pay, settlement or permit to be paid, any part compromise of any claim or demand arising from such Third Party Claim, unless Claim or the consent to the entry of a judgment with respect to such Third Party Claim entered into without the prior written consent of the Indemnifying Party consents in writing to such payment (which consent will shall not be unreasonably withheld, delayed conditioned or conditioneddelayed).
(d) or unless a final judgment from which no appeal may be taken by or on behalf of the If any Indemnified Party is entered against asserts the Indemnified Party for such liability. No such existence of a claim giving rise to Losses (but excluding Third Party Claim may be settled by the Indemnifying Claims), such Party without the shall give written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails notice to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim Such written notice shall state that it is being given pursuant to this Section 7.4, specify, in reasonable detail, the nature and proposes amount of the claim (to settle the extent they are capable of determination). If such Indemnifying Party, within 60 days after the mailing of notice by such Indemnified Party, shall not give written notice to such Indemnified Party announcing such Indemnifying Party’s intent to contest such assertion of such Indemnified Party, such assertion shall be deemed rejected, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement. If such Indemnifying Party contests such assertion of a claim prior by giving such written notice to a final judgment thereon or to forgo appeal with respect theretothe Indemnified Party within said period, then the Indemnified Party will give Parties shall act in good faith to reach agreement regarding such claim. If litigation or arbitration shall arise with respect to any such claim, the Indemnifying Party prompt written notice thereof prevailing Party, as determined pursuant to Section 8.15, shall be entitled to reimbursement of costs and expenses, to the Indemnifying Party will have the right to participate extent provided in the settlement Section 8.15, incurred in connection with such litigation or assume or reassume the defense of such Third Party Claimarbitration (including reasonable attorneys’ fees and expenses and investigation costs).
Appears in 1 contract
Procedures for Indemnification. As used herein, (a) If any Buyer Indemnified Party or any Seller Indemnified Party (hereinafter an "“Indemnified Party" means ”) shall Claim to have suffered any Losses (other than with respect to any Claim asserted, demand or other Action by any Person who is not a party seeking to this Agreement (hereinafter a “Third-Party Claim”)) for which indemnification for any Loss (including, but not limited to attorneys fees) pursuant to is available under Section 11.2 10.02 or 11.3 hereof10.03, as applicablethe case may be, and the term "Indemnifying Party" means Indemnified Party shall notify the party who is obligated required to provide indemnification under Section 11.02 or 11.3, as applicable(hereinafter an “Indemnifying Party”) in writing of such Claim. The Any written notice provided by an Indemnified Party agrees to an Indemnifying Party of a Claim for which indemnification is available hereunder shall be given promptly after the Indemnified Party becomes aware of the Claim, shall describe the nature of such Claim, the facts and circumstances that give rise to such Claim and the amount of the Losses attributable to such Claim if reasonably ascertainable at the time such Claim is made (or if not then reasonably ascertainable, the maximum amount of such Claim reasonably estimated by the Indemnified Party). In the event that within thirty (30) days after the receipt by the Indemnifying Party prompt of such a written notice of any eventfrom the Indemnified Party, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding the Indemnified Party shall not have been given notice by or in respect the Indemnifying Party of a third party (a "Third Party Claim") of which it has knowledge, for which written objection to such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Indemnification Claim, the Indemnifying Party will shall conclusively be deemed to have agreed that it is liable to indemnify the right Indemnified party for the full amount of all Losses arising with respect to direct, through counsel of its own choosing, the defense or settlement of Claim described in the written notice which is delivered to the Indemnifying Party with respect to any such Third Indemnification Claim, including the amount of the Losses specified by the Indemnified Party in the written notice of the Indemnification Claim at its own expensewhich is delivered to the Indemnifying Party. In such caseNotwithstanding anything to the contrary contained in Section 10.02 or Section 10.03 hereof, an Indemnifying Party shall have no obligation to indemnify an Indemnified Party with respect to a Breach of Seller Rep Claim or a Breach of Buyer Rep Claim unless the written notice required to be delivered by the Indemnified Party pursuant to this Section 10.04(a) is delivered prior to the expiration of the applicable Survival Period provided for in Section 10.01 hereof for the representation and warranty giving rise to the Breach of Seller Rep Claim or the Breach of Buyer Rep Claim.
(b) If within the thirty (30) day period described in Section 10.04(a) above, the Indemnified Party may participate shall have been given notice by the Indemnifying Party setting forth the Indemnifying Party’s objections to such Indemnification Claim and the Indemnifying Party’s reasons for such objection, then the parties shall negotiate in such defense, but in such case good faith for a period of ten (10) Business Days from the expenses of date the Indemnified Party will be paid by receives such objection. After such ten (10) Business Day period (or such longer period as they may agree in writing), if the Indemnified Party. The Indemnified Party will promptly provide parties still cannot agree on the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Indemnification Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not paymay, or permit at any time thereafter, until the expiration of the applicable statute of limitations with respect to be paid, any part of any claim or demand arising from such Third Party its Indemnification Claim, unless commence legal proceedings against the Indemnifying Party consents to enforce its rights to indemnification from and against any Losses described in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this notice described in Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim10.04(a) above.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys feesa) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The An Indemnified Party agrees shall, promptly following the discovery of any matter that may give rise to give any Losses, notify the Indemnifying Party prompt written notice in writing of its claim for indemnification for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the Losses estimated to accrue therefrom; provided, however, that the Indemnified Party’s failure to so notify the Indemnifying Party shall not release the Indemnifying Party, in whole or in part, from its obligations under this Article VII, except to the extent (and solely to the extent) that the Indemnifying Party has been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses. Following notification to the Indemnifying Party pursuant to this Section 7.6, the Indemnified Party may, at the sole expense and liability of the Indemnifying Party, exercise full control of the defense, compromise, or settlement of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of Legal Proceeding that may give rise to a third party (a "Third Party Claim") of which it has knowledge, claim for which such Indemnified Party is entitled to indemnification under this Article 11. In VII, unless and until the case Indemnifying Party (i) delivers a written confirmation to such Indemnified Party that the indemnification provisions of a Third Party Claimthis Article VII are applicable to such Legal Proceeding and that, subject to the other provisions of this Article VII, the Indemnifying Party will shall indemnify such Indemnified Party in respect of such Legal Proceeding pursuant to the terms of this Article VII; (ii) notifies such Indemnified Party in writing of the Indemnifying Party’s intention to assume the defense thereof and thereafter conducts the defense actively and diligently; and (iii) retains legal counsel reasonably satisfactory to such Indemnified Party to conduct the defense of such Legal Proceeding. Notwithstanding anything to the contrary in the immediately preceding sentence, the Indemnifying Party shall not have the any right to direct, through counsel of its own choosing, assume the defense of such Legal Proceeding, if (1) such Legal Proceeding seeks an injunction or other equitable relief and not money damages only; or (2) the settlement or compromise of, or an adverse judgment with respect to, such Legal Proceeding is, in the good faith judgment of the Indemnified Party, likely to establish a precedent, custom or practice materially adverse to the continuing business interests or the reputation of the Indemnified Party.
(b) The Indemnified Party and the Indemnifying Party shall use their commercially reasonable efforts to cooperate with the party assuming the defense, compromise, or settlement of any such Third Party Claim at its own expenseLegal Proceeding in accordance herewith in any manner that such party may reasonably request. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide If the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assumes the defense of any such Third Legal Proceeding, the Indemnified Party Claim shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnified Party unless (i) the Indemnifying Party has specifically agreed to pay such fees and expenses or (ii) the Indemnified Party has been advised by its counsel that there may be one or more legal defenses from claims available to it that are different from or additional to those available to the Indemnifying Party or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Legal Proceeding (in either of which cases the Indemnifying Party shall not have the right to direct the defense, compromise, or settlement of such Legal Proceeding on behalf of the Indemnified Party), and in any such case the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party, it being understood and agreed, however, that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys at any time for the Indemnified Party. No Indemnified Party will not pay, shall settle or permit compromise or consent to be paid, any part entry of any claim or demand arising from judgment with respect to any such Third Party ClaimLegal Proceeding for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, unless the Indemnifying Party consents fails to assume control of such Legal Proceeding in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liabilitymanner provided in this Section 7.6(b). No such Third Party Claim may be settled by the The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise or consent to entry of any judgment with respect to any such Legal Proceeding (i) in which consent will not any relief other than the payment of money damages is or may be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the sought against any Indemnified Party will have or (ii) that does not include as an unconditional term thereof the right giving by the claimant, party conducting such investigation, plaintiff or petitioner to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the such Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal release from all Losses with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimLegal Proceeding.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Apex Silver Mines LTD)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a A party seeking indemnification for any Loss (including, but not limited entitled to attorneys fees) be indemnified pursuant to Section 11.2 7.2 or 11.3 hereof7.3 (the “Indemnified Party”) shall promptly notify, as applicablein accordance with Section 8.1, and the term "party liable for such indemnification (the “Indemnifying Party" means ”), in writing, of any claim or demand with reasonable specificity, under which the party who Indemnified Party has determined has given or is obligated reasonably likely to give rise to a right of indemnification under this Agreement within 45 days of such determination; provided, however, that a failure to provide indemnification under Section 11.02 or 11.3, as applicablesuch notice shall not relieve any Indemnifying Party of its obligations hereunder except to the extent that it has been materially prejudiced by such failure. The If the Indemnified Party agrees to give shall notify the Indemnifying Party prompt written notice of any eventclaim or demand pursuant to Section 7.5, and if such claim or any claim, action, suit, demand, assessment, investigation, arbitration demand relates to a claim or other proceeding demand asserted by or in respect of a third party (against the Indemnified Party that the Indemnifying Party acknowledges is a "Third Party Claim") of claim or demand for which it has knowledge, for which such must indemnify or hold harmless the Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party ClaimSection 7.2 or 7.3, the Indemnifying Party will shall have the right to direct, through employ counsel of its own choosingchoice, and reasonably acceptable to the defense or settlement of Indemnified Party, to defend any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by claim or demand asserted against the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will shall have the right to participate in the settlement defense of any such claim or demand at its own expense. The Indemnifying Party shall notify the Indemnified Party in writing, as promptly as possible (but in any case before the due date for the answer or response to a claim, as such due date may be modified or extended) after the date of the notice of claim given by the Indemnified Party to the Indemnifying Party under Section 7.5, of its election to defend in good faith any such third party claim or demand. So long as the Indemnifying Party is defending in good faith any such claim or demand asserted by a third party against the Indemnified Party, the Indemnified Party shall not settle or compromise such claim or demand. The Indemnified Party shall make available to the Indemnifying Party or its agents, at the Indemnifying Party’s cost, all records and other material in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party claim or demand. Neither the Indemnifying Party nor the Indemnified Party shall settle or compromise any such claim or demand unless the Indemnifying Party or the Indemnified Party, as the case may be, is given a full and complete release of any and all liability by all relevant parties relating thereto. If notice is given to an Indemnifying Party of the commencement of any action and it does not, within 15 days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume or reassume the defense thereof, the Indemnifying Party shall be bound by any determination made in such action or any compromise or settlement thereof effected by the Indemnified Party. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that an action may adversely affect it or its Affiliates other than a result of monetary damages, such Third Indemnified Party Claimmay, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall not be bound by any determination of an action so defended or any compromise or settlement thereof effected without its consent (which shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Procedures for Indemnification. As used herein, an "“Indemnified Party" ” means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 9.02 or 11.3 hereof, as applicableSection 9.03, and the term "“Indemnifying Party" ” means the party who is obligated to provide indemnification under Section 11.02 9.02 or 11.3, as applicableSection 9.03. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third “Third-Party Claim"”) of which it has knowledge, for which such Indemnified Indemnifying Party is entitled to indemnification under this Article 11ARTICLE IX; provided, that failure to so notify the Indemnifying Party of any such claim shall discharge the Indemnifying Party of its liabilities and obligations hereunder only if and to the extent that the Indemnifying Party is prejudiced thereby. In the case of a Third Third-Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Third-Party Claim at its own expense. In such case, case the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's ’s records and personnel relating to any such Third Third-Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Third-Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Third-Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's ’s expense. If the Indemnified Party assumes the defense of any such Third Third-Party Claim pursuant to this Section 9.04 and proposes to settle such claim Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Third-Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ember Therapeutics, Inc. - Ny)
Procedures for Indemnification. (a) As used herein, promptly as practicable after receipt by an "Indemnified Party" means a party seeking indemnification for Party of notice of any Loss in respect of which an Indemnifying Party may be liable under this Article VII, the Indemnified Party shall give notice thereof (including, but not limited the "Indemnification Notice") to attorneys feesthe Indemnifying Party. The Indemnification Notice shall state the reason for the indemnification claim and (if known) pursuant to Section 11.2 the amount or 11.3 hereof, as applicableestimate of the amount that may be due under this Article VII, and shall provide relevant documentary or other evidence regarding such claim and the term "Indemnifying Party" means the party who is obligated to provide proposed indemnification under Section 11.02 or 11.3, as applicableamount. The failure of any Indemnified Party agrees to give such notice shall not relieve the Indemnifying Party prompt written of its indemnification obligations under this Article VII, except to the extent such failure results in a lack of actual notice to the Indemnifying Party and the Indemnifying Party is materially prejudiced as a result of failure to receive such notice. Within 60 days after receipt of an Indemnification Notice in accordance with this Section 7.03(a), the Indemnifying Party shall deliver to the Indemnified Party a notice of its acceptance of or disagreement with such indemnification claim.
(b) In the case of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding claim asserted by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of including any such Third Party Claim at its own expense. In such caseGovernmental Authority), the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide shall (i) notify the Indemnifying Party with access of such claim within 30 days after receipt of such claim (but at least 15 days prior to the Indemnified Party's records and personnel relating expiration of the period during which the defendant may assert its defense, if such period expires earlier), it being understood that the failure to any give such Third Party Claim during normal business hours and will otherwise cooperate with notice shall not relieve the Indemnifying Party of its indemnification obligations under this Article VII, except to the extent such failure results in a lack of actual notice to the defense or settlement of such Third Indemnifying Party Claim, and the Indemnifying Party will reimburse is materially prejudiced as a result of failure to receive such notice, and (ii) permit the Indemnified Party for all Indemnifying Party, at its reasonable out-of-pocket costs option and expenses incurred in providing such accessexpense, personnel to take over and cooperation. Upon assumption of assume the defense of any such Third Party Claim claim by the Indemnifying Party, counsel satisfactory to the Indemnified Party will not pay, and to settle or permit to be paid, any part otherwise dispose of any claim or demand arising from such Third Party Claim, unless the same; provided that if the Indemnifying Party consents in writing to such payment does so take over and assume the defense, (which consent will not be unreasonably withheld, delayed or conditionedx) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against may at its discretion at all times participate, at its own expense, in such defense by counsel of its own choice, and (y) the Indemnifying Party shall, at all times and to the maximum extent possible, keep the Indemnified Party informed of the status of such claim and the proceedings related thereto; provided, further, that an Indemnifying Party shall not be entitled to assume the defense of any such third-party claim (and shall be liable for reasonable fees and expenses of counsel to the Indemnified Party for defending such liability. No such Third claim) if, in the Indemnified Party's reasonable judgment, a conflict of interest exists between the Indemnified Party Claim may be settled by and the Indemnifying Party without in respect of such claim. The Indemnifying Party shall not, in defense of any such claim, except with the prior written consent of the Indemnified Party, which consent will (A) enter into any settlement or compromise that does not be unreasonably withheldinclude, delayed as an unconditional term thereof, the giving by the claimant or conditionedplaintiff in question to the Indemnified Party and its Affiliates a release of all liabilities in respect of such claims, or (B) agree to any non-monetary relief that adversely affects the business of the Indemnified Party. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defensedoes not accept the defense of any claim within 30 days of delivery of the notice, then the Indemnified Party will shall have the right to undertake defend against any such claim by counsel of its own choice and shall be entitled to settle or agree to pay in full such claim or demand; provided that if an Indemnified Party does so take over and assume the defense or settlement thereofdefense, at the Indemnifying Party's expense. If the Indemnified Party assumes shall, at all times and to the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretomaximum extent possible, then the Indemnified Party will give keep the Indemnifying Party prompt written notice thereof informed of the status of such claim and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimproceedings related thereto.
Appears in 1 contract
Sources: Separation Agreement (Gentek Inc)
Procedures for Indemnification. As used herein(a) Whenever any claim shall arise for indemnification hereunder, an "the Party entitled to indemnification (the “Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees”) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to shall promptly provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any eventsuch claim to the other Party (the “Indemnifying Party”). The notice shall set forth such information with respect thereto as is then reasonably available to the Indemnified Party, specifying each provision of this Agreement under which the claim is made and the nature and amount of the claim (or any a good faith estimated amount) asserted, in each case, in reasonable detail in light of the facts to the extent then known by the Indemnified Party, and which notice shall be provided before the Indemnified Party incurs substantial expense with respect to responding to such claim. The Indemnifying Party shall then give the Indemnified Party notice of its intent to pay or dispute such claim, specifying in reasonable detail the reason(s) for its intended action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action by a Third Party Claimperson or entity who is not a party to this Agreement, the Indemnifying Party will have Party, at its sole cost and expense and upon written notice to the right to directIndemnified Party, through counsel of its own choosing, may assume the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by Action with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access shall be entitled to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party participate in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying PartyAction, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditionedwith its counsel and at its own cost and expense. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from does not assume the defense of any such defenseAction, then the Indemnified Party will have the right may, but shall not be obligated to, defend against such Action in such manner as it may deem appropriate, including, but not limited to, settling such Action, after giving notice of it to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If , on such terms as the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section may deem appropriate and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then no action taken by the Indemnified Party will give in accordance with such defense and settlement shall relieve the Indemnifying Party prompt written notice thereof and the of its indemnification obligations herein provided with respect to any damages resulting therefrom. The Indemnifying Party will have shall not settle any Action without the right to participate in the settlement Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or assume or reassume the defense of such Third Party Claimdelayed).
Appears in 1 contract
Sources: Termination and Inventory Purchase Agreement (Eastside Distilling, Inc.)
Procedures for Indemnification. As used herein, an "Indemnified PartyINDEMNIFIED --------------------------------- PARTY" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicableARTICLE 10, and the term "Indemnifying PartyINDEMNIFYING PARTY" means the party who is obligated to provide indemnification under Section 11.02 or 11.3ARTICLE 10, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party ClaimTHIRD-PARTY CLAIM") of which it has knowledge, for which such Indemnified Indemnifying Party is entitled to indemnification under this Article 11ARTICLE 10. In the case of a Third Third-Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Third-Party Claim at its own expense. In such case, case the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Third-Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Third-Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Third-Party Claim may be settled by the me Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third any Such Third-Party Claim pursuant to this Section ARTICLE 10 and proposes to settle such claim Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Third-Party Claim.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant Subject to Section 11.2 or 11.3 hereof9.5 of this Agreement, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified a Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to seeking indemnification under this Article 11IX (the "Indemnified Party") shall promptly notify the Party against whom a claim for indemnification is sought under this Agreement (the "Indemnifying Party") in writing, which notice shall specify, in reasonable detail, the nature and estimated amount of the claim and shall include a complete and accurate copy of any notice, complaint or other information received by the Indemnified Party with respect to such claim. In If a claim by a third party is made against an Indemnified Party, and if the case Indemnified Party intends to seek indemnity with respect thereto under this Article IX, the Indemnified Party shall promptly (but in no event longer than 30 days ("Indemnity Notice Period") of a Third Party Claim, such claim being made) notify the Indemnifying Party will have of such claim and the reasonable details thereof, including a complete and accurate copy of any notice, complaint or other information received by the Indemnified Party with respect to such claim; provided, however, that any failure by an Indemnified Party to notify the Indemnifying Party of a claim within the Indemnity Notice Period for such claim shall not affect the Indemnified Party's right to directindemnification under the Article IX except (and then only) to the extent that the Indemnifying Party is actually prejudiced by such failure. The Indemnifying Party shall have 30 days after receipt of such notice to undertake, conduct and control, through counsel of its own choosingchoosing and at its expense, the settlement or defense or settlement of any such Third Party Claim at its own expense. In such casethereof, and the Indemnified Party may participate shall cooperate with it in such defenseconnection therewith, but in such case except that with respect to settlements entered into by the expenses Indemnifying Party (i) the consent of the Indemnified Party will shall be paid by required if the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party provides for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not payequitable relief against, or permit to be paidotherwise adversely affects, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will shall not be unreasonably withheld, delayed withheld or conditioneddelayed; and (ii) the Indemnifying Party shall obtain a complete release of the Indemnified Party. If the Indemnifying Party fails to defend undertakes, conducts and controls the settlement or fails to prosecute or withdraws from defense of such defenseclaim, then the Indemnifying Party shall permit the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the such settlement or assume or reassume defense through counsel chosen by the defense Indemnified Party, provided that the fees and expenses of such Third Party Claimthe Indemnified Party's counsel shall be borne by the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. As used hereinWhenever a claim shall arise for indemnification under this Article 11, an "except as otherwise provided in Section 11.4, the parties shall proceed as provided as set forth in this Section 11.3. The party entitled to indemnification (the “Indemnified Party" means a ”) shall promptly notify the party seeking from which indemnification for any Loss is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means ”) of such claim and, when known, the party who is obligated to provide indemnification under Section 11.02 or 11.3facts constituting the basis for such claim; provided, as applicable. The Indemnified Party agrees to give however, that in the Indemnifying Party prompt written notice event of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by claim for indemnification hereunder resulting from or in respect of connection with any claim or Legal Proceeding by a third party (a "“Third Party Claim") of which it has knowledge”), for which such the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten Business Days prior to the time any response to the Third Party Claim is entitled to indemnification under this Article 11required, and in any event within five Business Days following receipt of notice thereof. In the case event of a any such Third Party Claim, the Indemnifying Party will have the right to directmay, through counsel of at its own choosingsole cost and expense, assume the defense or settlement of any such the Third Party Claim at its own expense. In such caseby written notice within 30 calendar days, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by using counsel that is reasonably satisfactory to the Indemnified Party. The failure of an Indemnified Party will promptly provide to give timely notice shall not affect the right to indemnification of the Indemnified Party except to the extent that the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the demonstrates actual prejudice. If an Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assumes the defense of any such Third Party Claim, the Indemnifying Party shall be entitled to take all steps necessary in the defense thereof, including any settlement; provided, however, that the Indemnified Party may, at its own expense, participate in any Legal Proceeding with respect to such Third Party Claim by the with counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the defense of any Third Party Claim as provided herein, shall not, however: (i) consent to, or enter into, any compromise or settlement of the Third Party Claim which commits the Indemnified Party will not payto take, or permit to be paidforbear from taking, any part action or does not provide for a full and complete written release by such third party of the Indemnified Party, or (ii) consent to the entry of any claim or demand judgment in any Legal Proceeding that does not relate solely to monetary damages arising from such the Third Party Claim, unless in any such case, without the Indemnifying Party consents in writing to such payment (Indemnified Party’s prior written consent, which consent will shall not be unreasonably withheld, delayed conditioned or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre- trial activities, trial, compromise, settlement or discharge of any Third Party Claim in respect of which indemnity is entered against sought pursuant to this Article 11, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information. So long as the Indemnifying Party is in good faith defending any Third Party Claim, the Indemnified Party for such liability. No shall not compromise or settle such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Indemnifying Party, which consent will shall not be unreasonably withheld, delayed conditioned or conditioneddelayed. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defensedoes not assume the defense of any Third Party Claim in accordance with this Section 11.3, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of may defend against such Third Party Claim pursuant to this Section and proposes to settle in such manner as it may deem appropriate, including settling such claim or litigation (after giving prior written notice of the same to a final judgment thereon the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or to forgo appeal with respect thereto, then delayed) on such terms as the Indemnified Party will give the Indemnifying Party prompt written notice thereof may reasonably deem appropriate, and the Indemnifying Party will have shall promptly indemnify the right to participate Indemnified Party in accordance with the settlement or assume or reassume the defense provisions of such Third Party Claimthis Article 11.
Appears in 1 contract
Sources: Stock Purchase Agreement
Procedures for Indemnification. As used hereinThe following procedures and requirements shall apply with respect to any actual or potential claim, an "Indemnified Party" means a party seeking indemnification for any Loss (includingwritten demand, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice commencement of any eventaction, or the occurrence of any claim, action, suit, demand, assessment, investigation, arbitration other event which involves any matter or other proceeding by or in respect related series of a third party matters (a "Third Party Claim") of against which it has knowledge, for which such Indemnified Party either party is entitled to indemnification (the "Indemnified Party") from the other party (the "Indemnifying Party") under this Article 11. In Section 11.1 or 11.2 above.
11.3.1 Promptly after the case of a Third Indemnified Party first receives written documents pertaining to the Claim, or if such Claim does not involve a third party Claim, promptly after the Indemnifying Indemnified Party will have the right to direct, through counsel first has actual knowledge of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such caseClaim, the Indemnified Party may participate shall give notice to the Indemnifying Party of such Claim in reasonable detail and stating the amount involved, if known, together with copies of any such defense, but in such case written documents. The Indemnifying Party shall have 10 days from the expenses personal delivery or mailing of the Claim notice (the "Notice Period") to notify the Indemnified Party will be paid by (i) whether or not it disputes its liability to the Indemnified Party. The Party hereunder with respect to such Claim, and (ii) notwithstanding any such dispute, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party will promptly provide against such Claim.
11.3.2 If the Indemnifying Party disputes its liability with access respect to such, Claim or the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with amount thereof (whether or not the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse desires to defend the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred against such Claim as provided below), such dispute shall be resolved in providing such access, personnel and cooperationaccordance with Section 11.3.7 below. Upon assumption of Pending the defense resolution of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled dispute by the Indemnifying Party of its liability with respect to any Claim, any such third-party Claim shall not be settled without the prior written consent of the Indemnified Party.
11.3.3 If the Indemnified Party desires to defend the Indemnified Patty against the Claim, then the Indemnifying Party - upon first ▇▇▇▇ng into court or independent escrow a cash sum equal to fifty percent (50.0%) of the amount in dispute during the Notice Period - shall have the right, at its sole cost, expense and ultimate liability regardless of the outcome, and through counsel of its choice, to litigate, defend, settle or otherwise attempt to resolve such Claim. Notwithstanding the foregoing, the Indemnified Party may nevertheless elect, at any time and at the Indemnified Party's sole cost, expense and ultimate liability, regardless or the outcome, and through counsel of its choice, to litigate, defend, settle or otherwise attempt to resolve such Claim. If the Indemnified Party so elects (for reasons other than the Indemnifying Party's failure or refusal to provide a defense to such Claim), then the Indemnifying Party shall have no obligation to indemnify the Indemnified Party with respect to such Claim; provided, however, any such disposition will be without prejudice to any other right the Indemnified Party may have to indemnification under Section 11.1 or 11.2 above, regardless of the outcome of such Claim. In any event, Purchaser and BIG shall fully cooperate with each other and their respective counsel in connection with any such litigation, defense, settlement or other attempted resolution.
11.3.4 If the Indemnifying Party elects not to defend the Indemnified Party against such Claim, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such Claim or, if the same be defended by the Indemnifying Party, then that portion thereof as to which consent will such defense is unsuccessful, in each case, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder, unless the Indemnifying Party shall have disputed its liability to the Indemnified Party hereunder as provided above, in which event such dispute shall be resolved as provided in Section 11.3.7 below.
11.3.5 If an Indemnified Patty has a Claim against the Indemnifying Party hereund▇▇ ▇▇at does not involve a Claim being asserted against or sought to be unreasonably withheldcollected from it by a third party, delayed or conditionedthe Indemnified Party shall promptly send a notice with respect to Such Claim to the Indemnifying Party. If the Indemnifying Party fails disputes its liability with respect to defend or fails to prosecute or withdraws from such defenseClaim, then such dispute shall be resolved in accordance with Section 11.3.7 below; provided, however, that if the Indemnifying Party does not notify the Indemnified Party will have within the right to undertake Notice Period that it disputes such Claim, the defense or settlement thereof, at amount of such Claim shall be conclusively deemed a liability of the Indemnifying Party's expenseParty hereunder.
11.3.6 Upon tile determination of the liability for indemnification as provided herein, the Indemnifying Party shall pay to the Indemnified Party within 15 days after such determination the amount of any claim for indemnification made hereunder. If the Indemnified Party assumes is not paid in full and on time for any such claim, it shall have the defense right, notwithstanding any other rights that it may have against any other person or corporation, to setoff the unpaid amount of any such Third Party Claim against any amounts owed by it under this Agreement, any promissory note, or any other agreements entered into pursuant to this Section Agreement. Where Purchaser is the Indemnified Party, the amount of any such offset shall reduce the principal amount of the Note, and proposes shall be taken first from the principal payment to settle such claim prior be made by Purchaser to a final judgment thereon BIG on or before the date that is 180 days following Closing. Upon the payment in full of any claim, either by setoff or otherwise, the entity making payment shall be subrogated to forgo appeal with respect thereto, then the rights of the Indemnified Party will give against any person, firm or corporation with respect to the Indemnifying subject matter of such Claim.
11.3.7 All disputes under this Section l1.3 regarding liability for indemnification shall be settled by arbitration in Provo, Utah, before a single arbitrator pursuant to the rules of the American Arbitration Association. Arbitration may be commenced at any time by any Party prompt hereto giving written notice thereof to each other Party to a dispute that such dispute has been referred to arbitration under this Section 11.3.7. The arbitrator shall be selected by the joint agreement of BIG and Purchaser but, if they do not agree within 20 days after the date of the notice referred to above, the selection shall be made pursuant to the rules from the panels of arbitrators maintained by such Association. Any award rendered by the arbitrator shall be conclusive and binding upon the parties hereto; provided, however that any such award shall be accompanied by a written opinion of the arbitrator giving the reasons for the award. This provision for arbitration shall be specifically enforceable by the Parties, and the Indemnifying Party will decision of the arbitrator in accordance herewith shall be final and binding and there shall be no right to appeal therefrom. Each Parry shall pay its own expenses of arbitration and the expenses of the arbitrator shall be equally shared; provided, however, that if in the opinion of the arbitrator any claim for indemnification or any defense or objection thereto was unreasonable, the arbitrator may assess, as part of his award, all or any part of the arbitration expenses of the other party (including reasonable attorneys' fees and fees of the arbitrator) against the party raising such unreasonable claim, defense or objection. Nothing contained in this Section 11.3.7 shall prevent the Parties from settling any dispute by mutual agreement at any time,
11.3.8 The indemnification rights of the Parties under this Section 11.3 are independent of and in addition to such rights and remedies as the parties may have at law or in equity or otherwise for any misrepresentation, breach of warranty or failure to fulfill any agreement or covenant hereunder on the part of any party hereto including, without limitation, the right to participate in the settlement seek specific performance, rescission or assume restitution, none of which rights or reassume the defense of such Third Party Claimremedies shall be affected or diminished hereby.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wade Cook Financial Corp)
Procedures for Indemnification. As used hereinSubject to applicable Laws, an "Indemnified Party" means whenever a party seeking indemnification Claim shall arise for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 8.01, the Person entitled to indemnification (the “Indemnified Party”) shall promptly notify in writing the Party from which indemnification is sought (the “Indemnifying Party”) of such Claim and, when known, the facts constituting the basis of such Claim; provided, however, that in the event of a Claim for indemnification resulting from or 11.3in connection with a Claim by a third party, as applicable. The the Indemnified Party agrees shall give such written notice thereof to give the Indemnifying Party prompt written not later than ten (10) Business Days prior to the time any response to the third party Claim is required, if possible, and in any event within fifteen (15) Business Days following receipt of notice thereof (provided, that failure to timely notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party has been actually prejudiced by such failure). Following receipt of notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a such third party (a "Third Party Claim") of which it has knowledge, for which such and unless counsel to the Indemnified Party is entitled shall have reasonably determined in good faith that the assumption of such defense by the Indemnifying Party would be inappropriate due to indemnification under this Article 11. In the case a conflict of a Third Party Claiminterest, the Indemnifying Party will shall have the right option, at its cost and expense, to direct, through counsel of its own choosing, assume the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid matter and to retain counsel (not reasonably objected to by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access ) to the Indemnified Party's records and personnel relating to defend any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense claim or settlement of such Third Party Claimlegal proceeding, and the Indemnifying Party will reimburse shall not be liable to the Indemnified Party for all its reasonable out-of-pocket costs and any fees of other counsel or any other expenses incurred in providing such access, personnel and cooperation. Upon assumption of (except as expressly provided to the contrary herein) with respect to the defense of such Claim, other than reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. The Indemnified Party shall have the option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party) with its own counsel and counsel for each Party shall, to the extent consistent with such counsel’s professional responsibilities, cooperate with the other Party and any counsel designated by that Party. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Third Party Claim by Claim, the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other Party will not pay, and shall enter into only such settlement or permit compromise or consent to be paid, any part the entry of any claim or demand arising from judgment as the other Party shall consent, such Third Party Claim, unless the Indemnifying Party consents in writing consent not to such payment (which consent will not be unreasonably withheld, delayed conditioned or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liabilitydelayed. No such Third Party Claim may be settled by the An Indemnifying Party without the written consent of the Indemnified Party, which consent will shall not be unreasonably withheldliable for any settlement, delayed compromise or conditioned. If judgment not made in accordance with the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimpreceding sentence.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) If a claim for Damages (an “Indemnity Claim”), an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification other than Third-Party Claims under Section 11.02 or 11.38.5(b) below, as applicable. The Indemnified Party agrees is to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding be made by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is Person entitled to indemnification under this Article 11VIII (an “Indemnified Party”), such party shall give written notice briefly describing the claim and the total monetary damages sought (each, a “Notice”) to the Seller or Buyer, as applicable (each an “Indemnifying Party”) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which gives rise to Damages for which indemnification may be sought under this Article VIII. In Any failure to submit any such notice of claim to the case Indemnifying Party shall not relieve any Indemnifying Party of any liability hereunder, except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be deemed to have accepted the Notice and the Indemnifying Party shall be deemed to have agreed to pay the Table of Contents Damages at issue if the Indemnifying Party does not send a Third notice of disagreement to the Indemnified Party Claimwithin thirty (30) calendar days after receiving the Notice. If the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice, the Indemnifying Party will have shall promptly pay to the right Indemnified Party the amount sufficient to directpay the Damages.
(b) If an Indemnity Claim is to be made by an Indemnified Party entitled to indemnification hereunder in respect of, through arising out of or involving a claim made by any third party (each, a “Third-Party Claim”) against the Indemnified Party, the Indemnified Party shall give a Notice to the Indemnifying Party as soon as practicable after becoming aware of such Third-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. After such Notice, if the Indemnifying Party acknowledges in writing to an Indemnified Party that the Indemnifying Party is liable and has indemnity obligations for any Damages resulting from any such Third-Party Claim (and, in the case Seller is the Indemnifying Party, if Buyer consents, which consent may be withheld in Buyer’s sole and absolute discretion, and, further, in the case Buyer is the Indemnifying Party, if Seller consents, which consent may be withheld in Seller’s sole and absolute discretion), then the Indemnifying Party shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Third-Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnified Party) to handle and defend the same, unless the named parties to such action or proceeding include the Indemnified Party and the Indemnifying Party, and any such Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, in which event such Indemnified Party shall be entitled, at the Indemnifying Parties’ cost, risk and expense, to separate counsel of its own choosing, the defense and (iii) to compromise or settle such claim, which compromise or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will shall be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party made only with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which such consent will not to be unreasonably withheld, delayed provided that any such compromise or conditionedsettlement shall provide for the absolute and unconditional release of the Indemnified Parties from any Liability with respect to such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third-Party Claim (to the extent permitted above), the Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such Third-Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. If the Indemnifying Party fails to defend assume the defense of such claim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense or, as applicable, the refusal of Buyer or fails Seller to prosecute or withdraws from grant a request of the other to assume such defense), then the Indemnified Party against which such claim has been asserted will have the right to undertake the defense or settlement thereofundertake, at the Indemnifying Parties’ cost, risk and expense, the defense, compromise or settlement of such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Parties; provided, however, that such claim shall not be compromised or settled without the written consent of the Indemnifying Party's expense, which consent shall not be unreasonably withheld. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretothe claim, then the Indemnified Party will give keep the Indemnifying Party prompt written notice thereof and reasonably informed of the progress of any such defense, Table of Contents compromise or settlement; provided, however, that the Indemnifying Party will have the right to may, at its own cost, participate in the settlement or assume or reassume the investigation, trial and defense of such Third lawsuit or action and any appeal arising therefrom. The Indemnifying Party Claimshall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.5 and for any final judgment (subject to any right of appeal), and each Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any Damages by reason of such settlement or judgment.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ambassadors International Inc)
Procedures for Indemnification. As used hereinAny Person eligible for indemnification under Sections 10.04 and 10.05 above (each, the “Indemnified Party”) shall give notice to the Party or Parties obligated under such Section to indemnify such Indemnified Party (each, an "Indemnified “Indemnifying Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees”) pursuant to Section 11.2 or 11.3 hereof, as applicableeach time that, and within ten (10) days after, the term "Indemnifying Party" means the party who is obligated Indemnified Party becomes aware of any fact or circumstance which would reasonably be expected to provide indemnification give rise to an obligation to indemnify under such Section 11.02 10.04 or 11.310.05, as applicablewhich notice shall be accompanied by a copy of any claim made which may result in such obligation to indemnify. The Indemnified Indemnifying Party agrees shall have the right and obligation to give assume the defense (with counsel selected by the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim"and reasonably acceptable to the Indemnified Party) of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third claim in respect of which it is obligated to provide indemnity hereunder; provided that the Indemnifying Party Claim at shall not settle or compromise any such claim without the Indemnified Party’s prior written consent thereto (such consent not to be unreasonably withheld or delayed), unless the terms of such settlement or compromise discharge and release the Indemnified Party from any and all liabilities and obligations thereunder; provided, further, that PCL and the Padres shall neither institute nor defend any lawsuit on behalf of the City Indemnified Parties without the prior written consent of the City (which consent shall not be unreasonably withheld or delayed), and if the City does not give its own expenseconsent to such lawsuit or institutes such lawsuit itself, PCL and the Padres shall be relieved of their indemnity obligations described in this Article 10 and shall be relieved of their cost overrun obligations regarding the Ballpark Project for all costs arising out of such lawsuit. In such caseNotwithstanding the foregoing, the Indemnified Party may at all times shall have the right, at its option and expense, to participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party fully in the defense or settlement of such Third Party Claimclaim, and if the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will does not pay, or permit proceed diligently to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails commence to defend or fails to prosecute settle such claim within fifteen (15) days after its receipt of notice of the assertion or withdraws from such defensecommencement thereof, then the Indemnified Party will shall have the right right, but not the obligation, to undertake the defense or settlement thereof, of such claim for the account and at the Indemnifying Party's expense. If the Indemnified Party assumes the defense risk of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have shall be bound by any defense or settlement that the Indemnified Party may make to such claim. The parties agree that, for the purpose of enforcing any right of indemnity hereunder, the Indemnified Party may join the Indemnifying Party in any third-party claim as to participate which such right of indemnity would or might apply. The parties shall cooperate fully in the settlement defending or assume or reassume the defense of such Third Party Claimsettling any third-party claim.
Appears in 1 contract
Sources: Ballpark Design Build Procurement Consultant Agreement
Procedures for Indemnification. As used herein, an The procedures for indemnification shall be as follows:
A. The party claiming the indemnification (the "Indemnified Party" means a Claimant") shall promptly give notice to the party seeking from whom indemnification for any Loss is claimed (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of any claim, whether between the parties or brought by a third party who is obligated , specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If the claim relates to provide indemnification under Section 11.02 an action, suit or 11.3proceeding filed by a third party against Claimant, as applicable. The Indemnified Party agrees such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to give Claimant.
B. Following receipt of notice from the Claimant of a claim, the Indemnifying Party prompt written notice shall have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any eventmutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim. If the Claimant and the Indemnifying party do not agree within said period (or any claimmutually agreed upon extension thereof) , action, suit, demand, assessment, investigation, arbitration or other proceeding the Claimant may seek appropriate legal remedy.
C. With respect to any claim by or in respect of a third party (a "Third Party Claim") of as to which it has knowledge, for which such Indemnified Party the Claimant is entitled to indemnification under this Article 11. In the case of a Third Party Claimhereunder, the Indemnifying Party will shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may to participate in such defense, but in such case the expenses or assume control of the Indemnified Party will be paid by defense of such claim, and the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise Claimant shall cooperate fully with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party party subject to reimbursement for all its reasonable actual out-of-pocket costs and expenses expenses, including reasonable attorneys fees, incurred in providing such access, personnel and cooperationby the Claimant as the result of a request by the Indemnifying party. Upon assumption If the Indemnifying party elects to assume control of the defense of any such Third Party Claim by the Indemnifying Partythird-party claim, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will Claimant shall have the right to participate in the settlement defense of such claim at its own expense.
D. If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
E. If the Indemnifying Party does not elect to assume control or reassume otherwise participate in the defense of any third party claim, it shall be bound by the results obtained in good faith by the Claimant with respect to such Third claim and the Indemnifying Party Claimshall promptly reimburse Claimant for its defense costs including reasonable attorney's and other legal fees and the fees of consultants used in the defense of Claimant.
F. The indemnification rights provided in Sections 10.2 and 10.3 shall extend to the shareholders, directors, officers, partners employees and representatives, successors and assigns of the Claimant although for the purpose of the procedures set forth in this Section 10.4, any indemnification claims by such parties shall be made by and through the Claimant.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) If there occurs an event which either party asserts is an indemnifiable event pursuant to Section 6.1 or 6.2, an "Indemnified Party" means a the party seeking indemnification for any Loss (including, but not limited the "Indemnitee") shall provide notice (the "Notice of Claim") to attorneys fees) pursuant to Section 11.2 the other party or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is parties obligated to provide indemnification under Section 11.02 (the "Indemnifying Party") promptly. Providing the Notice of Claim shall be a condition precedent to any liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder only to the extent that such failure prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or 11.3any other expenses, as applicablein each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Indemnitee agrees to cooperate fully with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnitee, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release from all liability in respect to such claim or litigation. The Indemnifying Party agrees to give afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all persons, including any Governmental and Regulatory Authority, asserting any claim against the Indemnitee or conferences with representatives of or counsel for such persons. In no event shall the Indemnifying Party prompt written notice Party, without the consent of the Indemnitee, settle any event, claim on terms which provide for (i) a criminal sanction against the Indemnitee or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect (ii) injunctive relief materially and adversely affecting the Indemnitee.
(b) Upon receipt of a third party (a "Third Party Claim") Notice of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will shall have twenty (20) calendar days to contest its indemnification obligation with respect to such claim, or the right amount thereof, by written notice to directthe Indemnitee (the "Contest Notice"); provided, through counsel however, that if, at the time a Notice of its own choosingClaim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such twenty (20) day period shall not commence until a further written notice (the defense "Notice of Liability") has been sent or settlement of any such Third Party Claim at its own expense. In such case, delivered by the Indemnified Party may participate in such defense, but in such case to the expenses Indemnifying Party setting forth the amount of the Loss incurred by the Indemnified Party will be paid by that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, which the Indemnifying Party, believes is due the Indemnified Party. The Indemnified Party will promptly provide If no such Contest Notice is given with such twenty (20) day period, the obligation of the Indemnifying Party with access to pay the Indemnified Party the amount of the Loss set forth in the Notice of Claim or subsequent Notice of Loss, shall be deemed established and accepted by the Indemnifying Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with .
(c) If the Indemnifying Party in fags to assume the defense or of such Claim or, having assumed the defense and settlement of such Third Party Claim, and fails reasonably to contest such Claim in good faith, the Indemnifying Party will reimburse Indemnitee, without waiving its right to indemnification, may assume, a: the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption cost of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not paydefense and settlement of such Claim; provided however, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless that (i) the Indemnifying Party consents shall be permitted to join in writing the defense and settlement of such Claim and to such payment employ counsel at its own expense, (which consent will not be unreasonably withheld, delayed or conditionedii) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee, and (iii) the Indemnitee shall not settle such Claim without soliciting the written consent views of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimgiving them due consideration.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Princess Beverly Coal Holding Co Inc)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The 14.7.1 Each Indemnified Party agrees shall promptly give notice hereunder to give the Indemnifying Party prompt written notice indemnifying party after becoming aware of any eventclaim as to which recovery may be sought against the indemnifying party because of the indemnity in this Article 14.0, or any claimand, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect if such indemnity shall arise from the claim of a third party, so long as the indemnifying party assumes liability (a "Third Party Claim"as between the Parties) of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such caseclaim, the Indemnified Party may participate in such defense, but in such case shall permit the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access indemnifying party to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assume the defense of any such Third claim and any litigation or other proceeding resulting from such claim; provided that any indemnifying party and any Indemnified Party Claim may, in any event, at its own expense, monitor the defense of any such claim or litigation. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice (or by delay by an Indemnified Party in giving such notice) unless, and then only to the extent that, the rights and remedies of the indemnifying party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. The notice required hereunder shall specify the basis for the claim for indemnification and the Indemnified Liabilities arising therefrom to the extent ascertainable at the time of the notice. Failure by an indemnifying party to notify an Indemnified Party of its election to defend any such claim or action by a third party within twenty-one (21) days after notice thereof shall have been given to the indemnifying party shall be deemed a waiver by the Indemnifying Partyindemnifying party of its right to defend such claim or action. Notwithstanding the foregoing, the Indemnified Party will not payindemnifying party may, or permit to be paidat its own expense, any part monitor the defense of any such claim or demand arising from action.
14.7.2 The indemnifying party shall not, in the defense of such Third Party Claimclaim or any litigation resulting therefrom, unless consent to entry of any judgment (other than a judgment of dismissal on the Indemnifying Party consents in writing to such payment (merits without costs) or enter into any settlement, except with the written consent, which consent will shall not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such claim or litigation.
14.7.3 If the indemnifying party shall not assume the defense of any such claim by a third party, or litigation resulting therefrom, after receipt of notice from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate.
14.7.4 If an indemnifying party shall not, within thirty (30) days after its receipt of the notice required by Section 14.7.1 hereof, advise the Indemnified Party that the indemnifying party denies or disputes the right of the Indemnified Party to indemnity in respect of the claim, then the amount of such claim, if specified, shall be unreasonably withheld, delayed or conditioneddeemed to be finally determined between the Parties hereto in the amount of such claim. If the Indemnifying indemnifying party shall notify the Indemnified Party fails to defend that it denies or fails to prosecute or withdraws from such defensedisputes any claim made by the Indemnified Party, then the Indemnified Party will have the right Parties hereto shall endeavor to undertake the defense settle and compromise such claim, and if unable to agree on any settlement or settlement thereofcompromise, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense such claim for indemnification shall be settled by appropriate litigation, and any liability established by reason of such Third Party Claim pursuant settlement, compromise or litigation shall be deemed to this Section and proposes to settle such be finally determined. Any claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate that is finally determined in the settlement or assume or reassume manner set forth above shall be paid promptly by the defense of such Third Party Claimindemnifying party in cash.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "The indemnity given by each Party pursuant to Clauses 11.1 or 11.2 shall be subject to the following conditions:
11.3.1 the Party seeking indemnification (the “Indemnified Party" means ”) shall promptly notify the other Party (the “Indemnifying Party”) in writing of a description of the applicable third party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 claim or 11.3 hereof, as applicable, proceeding and the term "Indemnifying Party" means the party who is obligated nature and amount of any Losses (an “Indemnification Claim Notice”) in respect of which it intends to provide claim indemnification under Section 11.02 this Clause 11 upon actual knowledge of any such claim or 11.3proceeding resulting in such Losses; provided, as applicable. The Indemnified Party agrees however, that any delay to give notify shall not excuse any obligation of the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which except to the extent such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, delay materially prejudices the defense of such claim;
11.3.2 no admissions of liability or compromise or offer of settlement of any such Third Party Claim at its own expense. In such case, claim shall be made by the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Indemnifying Party, which consent will not be unreasonably withheld, delayed or conditioned. If ;
11.3.3 the Indemnifying Party fails to defend shall have full control over any claim, proceedings or fails to prosecute or withdraws from such defensesettlement negotiations in respect of which it is providing the indemnity, then provided that the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will shall have the right to participate in any such claim, proceedings, or settlement negotiations represented by its own counsel at its own cost and expense;
11.3.4 the settlement or assume or reassume Indemnified Party shall cooperate as may be reasonably requested by the Indemnifying Party (and at the Indemnifying Party’s expense) in order to ensure the proper and adequate defense of any action, claim or liability covered by this indemnification; and
11.3.5 the Indemnifying Party may not settle or otherwise dispose of any claim without the prior written consent of the Indemnified Party unless such Third settlement includes only the payment of monetary damages (which are fully paid by the Indemnifying Party), does not impose any injunctive or equitable relief upon the Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnified Party Claimand contains an unconditional release of the Indemnified Party in respect of such claim.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means Whenever a party seeking Claim shall arise for indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by resulting from or in respect of connection with a Claim by a third party (a "Third “Third-Party Claim") of which it has knowledge”), for which such Indemnified Party is the Person entitled to indemnification under this Article 11(the “Indemnified Party”) shall promptly notify the Party from which indemnification is sought (the “Indemnifying Party”) of such Claim and, when known, the facts constituting the basis of such Claim; provided, that failure to notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party has been prejudiced by such failure. Following receipt of notice of any such Third-Party Claim, and unless the assumption of such defense by the Indemnifying Party would be inappropriate due to a conflict of interest, the Indemnifying Party shall have the option, at its cost and expense, to assume the defense of such Third-Party Claim and to retain counsel (not reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party shall not be liable to the Indemnified Party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of such Claim, other than reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. In the case defense of a Third Party such Claim, the Indemnifying Party will shall act in good faith and conduct the defense actively and diligently, and in the event the Indemnifying Party is not complying with the foregoing, the Indemnified Party shall have the right to directassume the defense of such Claim. The Indemnified Party shall have the option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party) with counsel not reasonably objected to by the Indemnifying Party and counsel for each party shall, through to the extent consistent with such counsel’s professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement or compromise of, or consenting to the entry of its own choosingany judgment with respect to, any such Third-Party Claim with respect to which the Indemnifying Party has assumed the defense in accordance with this Section 11.5, the defense Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such Third Party Claim at its own expense. In consent not to be unreasonably withheld, conditioned or delayed; provided that no such case, the Indemnified Party may participate in such defense, but in such case the expenses consent shall be required if (a) there is a full release of the Indemnified Party will be and (b) the sole relief provided is monetary damages that are paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim full by the Indemnifying Party. An Indemnifying Party shall not be liable for any settlement, compromise or judgment entered into by the Indemnified Party will not paymade in accordance with the preceding sentence. Notwithstanding the rights of Sellers under this Section 11.5 with respect to the defense of claims, or permit to be paidthe Buyer shall control any environmental remediation performed at the Channelview Facility, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will and shall have the right to undertake take any action required, in Buyer’s reasonable judgment, by prudent environmental management and plant operation. Notwithstanding anything to the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to contrary in this Section and proposes to settle such claim prior 11.5, the Parties shall jointly control any Tax Proceeding involving Taxes attributable to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimStraddle Period.
Appears in 1 contract
Procedures for Indemnification. As used herein, an The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the "Indemnified Party" means a ") shall promptly give notice to the party seeking from whom the indemnification for any Loss is claimed (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of any claim, whether between the parties or brought by a third party who is obligated against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If the claim relates to provide indemnification under Section 11.02 an action, suit, or 11.3proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within five (5) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as applicablethe Indemnifying Party shall deem necessary or desirable. The For the purposes of such investigation, the Indemnified Party agrees to give make available to the Indemnifying Party prompt written notice and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any eventagreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim. Buyer shall be entitled to apply any claimor all of the Accounts Receivable collected on behalf of Sellers to a claim as to which Buyer is entitled to indemnification hereunder. If the 47 Indemnified Party and the Indemnifying Party do not agree within said period (or within any agreed-upon extension thereof), action, suit, demand, assessment, investigation, arbitration or other proceeding the Indemnified Party may seek appropriate legal remedy.
(c) With respect to any claim by or in respect of a third party (a "Third Party Claim") of as to which it has knowledge, for which such the Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claimhereunder, the Indemnifying Party will shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In expense to participate in or to assume control of the defense of such caseclaim, and the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise shall cooperate fully with the Indemnifying Party in the defense or settlement of such Third Party ClaimParty, and the Indemnifying Party will reimburse the Indemnified Party subject to reimbursement for all its reasonable actual out-of-pocket costs and expenses expense incurred in providing such access, personnel and cooperationby the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. Upon assumption If the Indemnifying Party elects to assume control of the defense of any such Third Party Claim by the Indemnifying Partythird-party claim, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will shall have the right to participate in the settlement defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or reassume otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such Third Party Claimclaim.
(f) The indemnification rights provided in Sections 10.2 and 10.3 hereof shall extend to the shareholders, directors, officers, members, partners, agents, employees, and representatives of the Indemnified Party, although for the purpose of the procedures set forth in this Section 10.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ez Communications Inc /Va/)
Procedures for Indemnification. As used herein, an "Indemnified Party" means Whenever a party seeking indemnification claim shall arise for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 10.1, the indemnified party or 11.3parties, as applicable. The Indemnified Party agrees to give appropriate (the “Other Parties”), shall promptly notify the party or parties from whom indemnification is sought for such claim (the “Indemnifying Party”) and request the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11defend the same. In the case of a Third Party Claim, Failure to so notify the Indemnifying Party will shall not relieve the Indemnifying Party of any liability which the Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party’s position. The Indemnifying Party shall have the right to direct, through counsel of its own choosing, the defense defend against such liability or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate assertion in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide which event the Indemnifying Party with access shall give written notice to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement Other Parties of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption acceptance of the defense of any such Third Party Claim claim and the identity of counsel selected by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless .
(a) If the Indemnifying Party consents in writing to such payment assumes the defense of an action:
(which consent will not be unreasonably withheld, delayed A) no settlement or conditioned) or unless a final judgment from which no appeal compromise thereof may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled effected
(i) by the Indemnifying Party without the written consent of the Indemnified Party, Other Parties (which consent will shall not be unreasonably withheldconditioned, delayed withheld or conditioned. If delayed) unless (x) there is no finding or admission of any violation of law or any violation of the Indemnifying rights of any Person by any Other Party fails to defend and no adverse effect on any other claims that may be made against any Other Party and (y) all relief provided is paid or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at satisfied in full by the Indemnifying Party's expense. If , or
(ii) by any Other Party without the Indemnified Party assumes consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed, and
(B) the Other Parties may subsequently assume the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to action if a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give court of competent jurisdiction determines that the Indemnifying Party prompt is not vigorously defending such action. In no event shall an Indemnifying Party be liable for any settlement effected without its written notice thereof and consent (which consent shall not be unreasonably withheld or delayed).
(b) With respect to any defense accepted by the Indemnifying Party, the Other Parties shall be entitled to participate with the Indemnifying Party will in such defense and also shall be entitled to employ separate counsel for such defense at their own expense. In the event the Indemnifying Party does not accept the defense of any indemnified claim as provided above or there otherwise exists a conflict of interest such that independent counsel for the Other Parties would be appropriate for the defense of any such indemnified claim, the Other Parties shall have [***] denotes language for which ▇▇▇▇▇▇ Telematics, Inc. has requested confidential treatment pursuant to the rules and regulations of the Securities Exchange Act of 1934, as amended. Confidential portions have been omitted and have been filed separately with the Securities and Exchange Commission. the right to participate employ counsel for such defense at the expense of the Indemnifying Party. Each Member agrees to cooperate and to cause the Company to cooperate with the other parties in the settlement or assume or reassume the defense of any such Third Party Claimaction and the relevant records of each party shall be available to the other parties with respect to any such defense.
Appears in 1 contract
Sources: Limited Liability Company Agreement (HUGHES Telematics, Inc.)
Procedures for Indemnification. As used herein, (i) If any Acquiror Indemnitee or Seller Indemnitee (an "Indemnified Party" means INDEMNIFIED PARTY") receives notice of the assertion of any claim, the commencement of any suit, action or proceeding, or the imposition of any penalty or assessment by a third party seeking indemnification for any Loss in respect of which indemnity may be sought hereunder (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicablea "THIRD PARTY CLAIM"), and the term indemnified party intends to seek indemnity hereunder, the indemnified party will promptly provide the other party (an "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt INDEMNIFYING PARTY") with written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "the Third Party Claim") , but in any event such notice shall be provided not later than 30 calendar days after receipt of which it has knowledge, for which such Indemnified notice of Third Party is entitled Claim. The failure by an indemnified party to indemnification under this Article 11. In the case so notify an indemnifying party of a Third Party Claim will not relieve the indemnifying party of any indemnification responsibility under this Article X, except to the extent, if any, that such failure materially prejudices the ability of the indemnifying party to defend such Third Party Claim. For clarification, it is agreed that Seller will not be an indemnifying party for claims pursuant to Section 10.3(a) or 10.3(b) for amounts below the Indemnifying Party $25 million amount referred to in the last proviso of Section 10.3.
(ii) The indemnifying party will have the right to directcontrol the defense, through counsel of its own choosing, the defense compromise or settlement of the Third Party Claim with its own counsel (reasonably satisfactory to the indemnified party); provided, however, that the indemnifying party shall not settle any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.indemnified party (which
Appears in 1 contract
Sources: Stock Purchase Agreement (Martin Marietta Materials Inc)
Procedures for Indemnification. As used herein, an "(a) A Person who may be entitled to be indemnified and held harmless under Section 3.2 or Section 3.3 (the “Indemnified Party" means ”), shall promptly notify (but in any event within thirty (30) days) the Party that is potentially liable therefor (the “Indemnifying Party”) in writing of any pending or threatened claim, investigation, proceeding or demand by a party seeking Third Party that the Indemnified Party has determined has given or could reasonably give rise to such a right under this Agreement (including a pending or threatened claim or demand asserted by a Third Party against the Indemnified Party, such claim being a “Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand and, if applicable, the specific provision of this Agreement that the Indemnified Party alleges to be breached (or the category of indemnification for into which the Loss fits); provided that the failure to provide such notice shall not release the Indemnifying Party from any Loss of its obligations under this Article III except to the extent the Indemnifying Party is prejudiced by such failure. Following delivery of a notice of a Third-Party Claim, the Indemnified Party shall deliver to the Indemnifying Party, promptly (includingand in any event within ten (10) Business Days) after the Indemnified Party’s receipt thereof, but copies of all notices and documents (including court papers) received by the Indemnified Party relating to such Third-Party Claim; provided that the failure to deliver such notices and documents shall not limited release the Indemnifying Party from any of its obligations except to attorneys feesthe extent the Indemnifying Party shall have been prejudiced as a result of such failure.
(b) Following receipt of a notice of a Third-Party Claim from an Indemnified Party pursuant to Section 11.2 or 11.3 hereof3.4(a), as applicablethe Indemnifying Party may assume the defense and control of such Third-Party Claim by delivery of written notice to the Indemnified Party, and if it does not assume the term "defense of such Third-Party Claim, to participate in the defense of any Third-Party Claim in accordance with the terms of Section 3.5 at such Indemnifying Party" means ’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the party who Indemnified Party, within thirty (30) days of receipt of an indemnification notice of from such Indemnified Party; provided that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party to the extent (i) in the reasonable judgment of the Indemnified Party, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnified Party in the defense of such Third- Party Claim by the Indemnifying Party, (ii) the Third-Party Claim is obligated to provide indemnification under Section 11.02 or 11.3a criminal proceeding, as applicable. action,
(c) The Indemnified Party agrees may take any actions reasonably necessary to give defend such Third-Party Claim prior to the time that it receives a notice from the Indemnifying Party prompt written notice as contemplated by Section Error! Reference source not found.. If the Indemnifying Party assumes the defense of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Third-Party Claim, the Indemnifying Party will have shall allow the right Indemnified Party a reasonable opportunity to direct, through counsel participate in the defense of such Third-Party Claim with its own choosing, the defense or settlement of any such Third Party Claim counsel and at its own expense. In such case, and the Indemnifying Party shall not be liable to the Indemnified Party may participate in such defense, but in such case the for legal expenses of subsequently incurred by the Indemnified Party will be paid by in connection with the defense thereof (it being understood and agreed that even if the Indemnified Party. The Indemnified Party will promptly provide participates in the defense of such a Third-Party Claim, the Indemnifying Party shall control the defense and all decisions with access respect thereto). Remainco or Spinco, as the case may be, shall, and shall use their reasonable best efforts to, and to the Indemnified Party's records cause their Affiliates and personnel relating to any such Third Party Claim during normal business hours and will otherwise Representatives to, cooperate fully with the Indemnifying Party in the defense or settlement of such Third any Third-Party Claim. Without limiting the generality of the foregoing, from and after the delivery of a notice of a claim for indemnification, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party will reimburse and its Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to such claim, at no cost to the Indemnifying Party (other than for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense Indemnified Parties). To the extent permitted by Law, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, without the consent of any Indemnified Party; provided that (i) such Third settlement provides only for the payment of monetary damages (and does not impose any injunctive relief or otherwise impose any conditions or restrictions on the applicable Indemnified Party), (ii) the Indemnifying Party pays or causes to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement (subject to the limitations in this Agreement), (iii) the Indemnifying Party obtains, as a condition of any settlement or other resolution, a complete and unconditional release of each Indemnified Party from any and all liability with respect to such Third-Party Claim and (iv) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(d) No Indemnifying PartyParty shall have any liability under this Article III for any Losses arising out of or in connection with any Third-Party Claim that is settled or compromised by an Indemnified Party without the prior consent of such Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
(e) If an Indemnified Party wishes to make a claim under this Article III that does not involve a Third-Party Claim, the Indemnified Party will not pay, or permit shall give written notice to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing setting forth (i) a reasonably detailed description of the claim, (ii) a good faith estimate of the amount of the claim (to such payment the extent ascertainable) and (which consent will not be unreasonably withheld, delayed or conditionediii) or unless a final judgment from which no appeal may be taken by or on behalf the specific provision of this Agreement that the Indemnified Party is entered against alleges to be breached (or other category of indemnification into which the Loss fits), and such notice shall be accompanied by copies of all documentation available to the Indemnified Party for such liability. No such Third Party Claim that may be settled by necessary or appropriate for the purposes of enabling the Indemnifying Party without to be informed and to take any and all appropriate decisions and actions with respect to the written consent matter and Loss that is the subject of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.claim; provided
Appears in 1 contract
Sources: Separation and Distribution Agreement (Everi Holdings Inc.)
Procedures for Indemnification. As used hereinWhenever a claim shall arise for indemnification under Section 11.1 above, an the party entitled to indemnification (the "Indemnified Party" means a ") shall promptly notify the party seeking from whom indemnification for any Loss is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of such claim and, when known, the party who is obligated facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to provide indemnification under Section 11.02 or 11.3the Indemnifying Party, as applicablesoon as possible, but in no event later than 10 business days prior to the time any response to the asserted claim is required, if possible, and in any event within 3 business days following receipt of notice thereof. The Indemnifying Party shall not be liable for any legal fees incurred by the Indemnified Party agrees prior to give the Indemnifying Party's receipt of such notice. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to so notify the Indemnifying Party prompt written notice of shall not relieve the Indemnifying Party from any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding liability for indemnification it may have if and to the extent that the Indemnifying Party shall not have been prejudiced by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11omission. In the case event of any such claim for indemnification resulting from or in connection with a Third Party Claimclaim or Legal Proceeding by a third party, the Indemnifying Party will have the right to directmay, through counsel of at its own choosingsole cost and expense, assume the defense or settlement thereof (and Seller shall assume the defense of any such Third claim for unpaid taxes for any period prior to the Closing and Buyer shall assume the defense of any claim for unpaid taxes for any period after the Closing); provided, however, that the Indemnifying Party Claim at shall first have agreed in writing that it does not and will not contest its own expense. In such case, responsibility for indemnifying the Indemnified Party may participate in respect of Losses, if any, attributable to such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Partyclaim or Legal Proceeding. The Indemnified Party will promptly provide the If an Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assumes the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party ClaimLegal Proceeding, unless the Indemnifying Party consents shall be entitled to select counsel and take all steps necessary in writing to such payment (which consent will not the defense thereof; provided, however, that no settlement shall be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party made without the prior written consent of the Indemnified Party, which consent will shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the proposed amount of such settlement, plus reasonable attorneys' fees); provided, further, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend does not assume the defense of any such claim or fails to prosecute or withdraws from such defenseLegal Proceeding in accordance with the terms hereof, then the Indemnified Party will have may defend against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice of the right same to undertake the defense or settlement thereof, at Indemnifying Party and obtaining the prior written consent of the Indemnifying Party's expense. If , which consent shall not be unreasonably withheld) on such terms as the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretomay deem appropriate, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 11.2; provided, however, that if the Indemnified Party does not obtain the prior written consent of the Indemnifying Party to any such settlement, and such written consent is not unreasonably withheld by the Indemnifying Party, the Indemnified Party shall not be entitled to indemnification hereunder from such Indemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 11.2 to the contrary, if, in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 11.2, (i) the Indemnifying Party shall not have promptly employed counsel or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of outside legal counsel to each of the Indemnifying Party and the Indemnified Party, that a conflict of interest gives rise to one or more legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice (reasonably satisfactory to the Indemnifying Party), the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall not have the right to participate in the settlement or assume or reassume direct the defense of any such Third action on behalf of the Indemnified Party. All payments by the Indemnifying Party Claimpursuant to this Article XI shall be in immediately available funds.
Appears in 1 contract
Procedures for Indemnification. As used hereinOther than as set forth in Section 10, an "Indemnified Party" means if a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case Section 12.3 (an “Indemnified Party”) asserts that a party obligated to indemnify it under this Section 12.3 (an “Indemnifying Party”) has become obligated to such Indemnified Party pursuant to Section 12.2, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of a Third Party Claim, which the Indemnifying Party will have the right may become obligated to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the an Indemnified Party may participate in hereunder, such defenseIndemnified Party shall give written notice to the Indemnifying Party; provided, but in such case however, that the expenses failure of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide to give prompt notice to the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with shall not release the Indemnifying Party in of its indemnification obligations hereunder, except to the defense or settlement of such Third Party Claim, and extent the Indemnifying Party will reimburse shall have been materially prejudiced by such failure. The Indemnifying Party agrees to defend, contest or otherwise protect the Indemnified Party for all against any such suit, action, investigation, claim or proceeding at its reasonable out-of-pocket costs sole cost and expenses incurred in providing such access, personnel expense subject to the provisions of this Section 12.3. The Indemnifying Party shall have the sole power to direct and cooperation. Upon assumption of control the defense of any such Third suit, action, investigation, claim or proceeding. The Indemnified Party Claim shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Indemnified Party’s choice; provided that the Indemnifying Party shall be responsible for the fees and expenses of one separate co-counsel for all Indemnified Parties to the extent the Indemnified Party is advised, in writing by its counsel, that either (x) the counsel the Indemnifying Party has selected has a conflict of interest with respect to the matter asserted which has not been waived by the relevant parties, or (y) there are legal defenses available to the Indemnified Party that are materially different from or additional to those available to the Indemnifying Party. The parties shall cooperate in the defense of any third party claim and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with the provisions of this Section 12.3. Any activities undertaken by the Indemnified Party pursuant to the prior sentence will be at the sole expense of the Indemnifying Party. In the event of a failure of the Indemnified Party to provide cooperation as required under this Section 12.3, the Indemnifying Party’s obligation to indemnify the Indemnified Party shall be reduced to the extent of the Losses with respect to which the Indemnifying Party’s ability to defend against the action, investigation, claim or proceeding underlying such indemnification obligation has been prejudiced by such failure. The Indemnifying Party shall not compromise or settle any such suit, action, investigation, claim or proceeding without the consent of the Indemnified Party unless (z) such compromise or settlement is on exclusively monetary terms and shall be paid entirely by the Indemnifying PartyParty (subject to the provisions of Section 12.2(a) and (ii) and 12.2(b)(iv) and 12.2(c), which shall be controlling) and the Indemnified Party will not pay, receives an unconditional release in such compromise or permit to be paid, any part of any claim settlement or demand arising from such Third (xx) the Indemnified Party Claim, unless the Indemnifying Party consents shall have consented in writing to the terms of such payment (compromise or settlement, which consent will shall not be unreasonably withheld; provided, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of however, that if the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by fails to consent thereto, the Indemnifying Party without Party’s liability with respect to such matter shall not exceed the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditionedproposed settlement amount. If the Indemnifying Party fails timely to defend defend, contest or fails to prosecute otherwise protect against such suit, action, investigation, claim or withdraws from such defenseproceeding, then the Indemnified Party will shall have the right to undertake do so, including, without limitation, the defense right to make any compromise or settlement thereof, at the Indemnifying Party's expense. If and the Indemnified Party assumes shall be entitled to recover the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give entire cost thereof from the Indemnifying Party prompt written notice thereof subject to the provisions of this Sections 12.2(a), 12.2(b)(iii), (iv) and (vi) and 12.2(c), which shall be controlling, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense result of such Third Party Claimsuit, action, investigation, claim or proceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Broadview Networks Holdings Inc)
Procedures for Indemnification. As used herein(a) Any claim under Section 3.05, Section 4.01 or Section 4.02 or any other Section of this Agreement on account of a Loss which does not result from a Third Party Claim shall be asserted by written notice given by or on behalf of an "Indemnified Indemnitee to the relevant Indemnifying Party" means . Such Indemnifying Party shall have a party seeking period of 30 calendar days after the receipt of such notice within which to respond thereto. If any such claim is not paid in full by an Indemnifying Party within 30 calendar days after written notice has been received by the Indemnifying Party, such Indemnitee and Indemnifying Party shall negotiate in good faith for a reasonable period of time to settle such amount claimed; provided, however, that such reasonable period shall not, unless otherwise agreed by such Indemnitee and Indemnifying Party in writing, exceed 45 calendar days from the time they began such negotiations; provided, further, that if such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. The Indemnitee may, but need not, at any time thereafter bring an Action against the Indemnifying Party to recover the unpaid amount of the claim and, if successful in whole or in part, the Indemnitee also shall be entitled to be paid the expenses of prosecuting such claim; provided, however, that in the event of any such Action, neither the Indemnitee nor the Indemnifying Party shall assert the defenses of statute of limitations and laches arising for the period beginning after the date they began negotiations hereunder as provided in the preceding sentence.
(b) Procedures for indemnification for any Loss of Third Party Claims shall be as follows:
(1) If an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including, but not limited to attorneys feeswithout limitation, any governmental entity) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated not a party to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice this Agreement of any event, claim or of the commencement by any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect such Person of a third party any Action (a "Third Party Claim") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to Section 3.05, Section 4.01 or Section 4.02 or any other Section of which it has knowledgethis Agreement, for which such Indemnified Indemnitee or other party shall give such Indemnifying Party is entitled written notice thereof promptly (and in any event within 30 calendar days) after becoming aware of such Third Party Claim; provided, however, that the failure of any Indemnitee to indemnification give notice as provided in this Section 4.04(b)(1) shall not relieve such Indemnifying Party of its obligations under this Article 11IV, except and only to the extent that such Indemnifying Party is prejudiced by such failure to give notice. In Such notice shall describe the case Third Party Claim in reasonable detail and, if ascertainable, shall indicate the amount (estimated if necessary) of the Loss that has been or may be sustained by such Indemnitee.
(2) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel, any Third Party Claim. Within 30 calendar days of the receipt of notice from an Indemnitee in accordance with Section 4.04(b)(1) (or sooner, if the nature of such Third Party Claim so requires), the Indemnifying Party shall notify the Indemnitee of its election whether the Indemnifying Party will assume responsibility for defending such Third Party Claim, which election shall specify any reservations or exceptions. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third Party Claim, such Indemnifying Party shall not be liable to such Indemnitee under this Article IV for any legal or other expenses (except expenses approved in writing in advance by the Indemnifying Party will have the right to direct, through counsel of its own choosing, Party) subsequently incurred by such Indemnitee in connection with the defense or settlement of thereof; provided, however, that if the defendants in any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide include both the Indemnifying Party with access to the Indemnified Partyand one or more Indemnitees and in any Indemnitee's records reasonable judgment a conflict of interest between one or more of such Indemnitees and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party exists in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense respect of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give if the Indemnifying Party prompt written notice thereof and the Indemnifying shall have assumed responsibility for such Third Party will Claim with any reservations or exceptions, such Indemnitees shall have the right to participate employ separate counsel to represent such Indemnitees and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel (other than local counsel) reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. If an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnitee of its election as provided in this Section 4.04(b)(2), such Indemnitee may defend or (subject to the remainder of this Section 4.04(b)(2)) seek to compromise or settle such Third Party Claim. Notwithstanding the foregoing, neither an Indemnifying Party nor an Indemnitee may settle or compromise any Third Party Claim over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld. Neither an Indemnifying Party nor an Indemnitee shall consent, without the written approval of the Indemnitee or Indemnifying Party (as the case may be) to entry of any judgment or enter into any settlement of any Third Party Claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee, in the case of a consent or settlement by an Indemnifying Party, or the Indemnifying Party, in the case of a consent or settlement by the Indemnitee, of a written release from all Liabilities in respect to such Third Party Claim.
(3) If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third Party Claim, the related Indemnitee shall make available to such Indemnifying Party any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, settlement or assume compromise, and shall otherwise cooperate in the defense, settlement or reassume the defense compromise of such Third Party Claim.
(4) Notwithstanding anything else in this Section 4.04(b) to the contrary, if an Indemnifying Party notifies the related Indemnitee in writing of such Indemnifying Party's desire to settle or compromise a Third Party Claim on the basis set forth in such notice (provided that such settlement or compromise includes as an unconditional term thereof the giving by the claimant or plaintiff of a written release of the Indemnitee from all Liabilities in respect thereof) and the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, such Indemnitee may continue to contest such Third Party Claim, free of any participation by such Indemnifying Party, at such Indemnitee's sole expense. In such event, the obligation of such Indemnifying Party to such Indemnitee with respect to such Third Party Claim shall be equal to (i) the costs and expenses of such Indemnitee prior to the date such Indemnifying Party notifies such Indemnitee of the offer to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which such Indemnitee declined to accept and (B) the actual out-of-pocket amount such Indemnitee is obligated to pay subsequent to such date as a result of such Indemnitee's continuing to pursue such Third Party Claim.
(5) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Distribution Agreement (Midas Inc)
Procedures for Indemnification. As used herein, an (a) The party (the "Indemnified Party" means a ") that may be entitled to indemnity hereunder shall give prompt notice to the party seeking indemnification for any Loss obligated to give indemnity hereunder (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of the party who is obligated to provide indemnification under Section 11.02 assertion of any claim, or 11.3the commencement of any suit, as applicableaction or proceeding in respect of which indemnity may be sought hereunder. The Any failure on the part of any Indemnified Party agrees to give the notice described in this Section 6.5(a) shall relieve the Indemnifying Party prompt written of its obligations under this Article 6 only to the extent that such Indemnifying Party has been prejudiced by the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 10 days thereof) after the Indemnified Party's receipt thereof, copies of any event, or any all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit, demand, assessment, investigation, arbitration suit or other proceeding by or in respect of a third party proceeding.
(a "Third Party Claim"b) of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will Buyer shall have the right obligation to direct, through counsel of its own choosing, assume the defense or settlement of any such Third Party Claim third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder, provided that (i) Seller shall at all times have the right, at its own expense. In option, to participate fully therein, and (ii) if Buyer does not proceed diligently to defend the third-party claim, suit, action or proceeding within 10 days after receipt of notice of such casethird-party claim, suit, action or proceeding, Seller shall have the Indemnified Party may participate in such defenseright, but in such case not the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access obligation, to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of undertake the defense of any such Third third-party claim, suit, action or proceeding.
(c) The Indemnifying Party Claim by the Indemnifying Party, shall not be required to indemnify the Indemnified Party will not pay, or permit with respect to be paid, any part amounts paid in settlement of any claim third-party suit, action, proceeding or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is investigation entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party into without the written consent of the Indemnifying Party; provided, however, that if the Indemnified Party is a Buyer Indemnified Party, which such third-party suit, action, proceeding or investigation may be settled without the consent will not be unreasonably withheld, delayed or conditioned. If of the Indemnifying Party fails on 10 days' prior written notice to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof if such third-party suit, action, proceeding or investigation is then unreasonably interfering with the Purchased Business or other operations of Buyer and the settlement is commercially reasonable under the circumstances; and provided further, that if the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim.gives 10 days'
Appears in 1 contract
Sources: Asset Purchase Agreement (Brightstar Information Technology Group Inc)
Procedures for Indemnification. As used herein(a) Promptly following receipt by a Buyer Indemnified Party or a Seller Indemnified Party, as the case may be (each, an "“Indemnified Party" means a party seeking indemnification for any Loss (including”), but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written of notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim"including any Governmental Entity) of which it has knowledgeany complaint, for dispute or claim or the commencement of any audit, investigation, action or proceeding with respect to which such Indemnified Party is may be entitled to indemnification pursuant hereto, such Indemnified Party shall provide written notice thereof to the party obligated to indemnify under this Article 11Agreement (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within twenty (20) days thereafter assuming full responsibility for any Buyer Claims or Seller Claims (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such audit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of reasonable and documented fees and disbursements of such counsel. In the case of a Third Party Claimevent, however, that the Indemnifying Party will declines or fails to assume the defense of the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then any Buyer Claims or Seller Claims (as the case may be), shall include the reasonable fees and disbursements of counsel for the Indemnified Party as incurred. In any audit, investigation, action or proceeding for which indemnification is being sought hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to direct, through counsel of participate in such matter and to retain its own choosing, the defense or settlement of any counsel at such Third Party Claim at its party’s own expense. In such case, The Indemnifying Party or the Indemnified Party (as the case may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide be) shall at all times use reasonable efforts to keep the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption (as the case may be) reasonably apprised of the status of the defense of any matter the defense of which it is maintaining and to cooperate in good faith with each other with respect to the defense of any such Third Party Claim by the Indemnifying Party, the matter.
(b) No Indemnified Party will not pay, may settle or permit to be paid, any part of compromise any claim or demand arising from such Third Party Claim, unless consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party consents in writing to such payment (which consent will may not be unreasonably withheldwithheld or delayed), delayed or conditionedunless (i) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 7.4(a) or (ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent will (x) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim, (y) does not be unreasonably withheldcontain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, delayed judgment or conditionedterm that in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.
(c) In the event an Indemnified Party claims a right to payment pursuant hereto with respect to any matter not involving a third party complaint, dispute or claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party (a “Claim Notice”). If Such Claim Notice shall specify the basis for such claim. The failure by any Indemnified Party so to notify the Indemnifying Party fails shall not relieve the Indemnifying Party from any liability that it may have to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right with respect to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim any claim made pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim7.4(c).
Appears in 1 contract
Sources: Call Agreement (FX Real Estate & Entertainment Inc.)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party (a) A Party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 8.2 or 11.3 hereof, as applicable, and Section 8.3 (the term "Indemnifying “Indemnified Party" means ”) shall provide prompt written notice to the party who is obligated Party required to provide indemnification under Section 11.02 8.2 or 11.3, as applicable. The Indemnified Party agrees to give Section 8.3 (the “Indemnifying Party prompt written notice Party”) of any event, claim or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding carried out by or in respect of a third party (a "“Third Party Claim"”) of which it has knowledge, for which such the Indemnified Party is entitled to indemnification under this Article 11VIII. In the case of a Third Party Claim, the The Indemnifying Party will have the right to direct, through counsel of its own choosingchoice, the defense or settlement of any such Third Party Claim at its own expense. In such case, the The Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Partydefense at its own expense. The Indemnified Party will promptly provide the Indemnifying Party with reasonable access to the Indemnified Party's ’s records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such a Third Party Claim, and the . The Indemnifying Party will reimburse the Indemnified Party for all of its reasonable out-of-out of pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such related to a Third Party Claim by the Indemnifying Party, the Claim.
(b) The Indemnified Party will not pay, or permit to be paid, any part of any claim or demand Loss arising from such a Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed withheld or conditioneddelayed) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liabilityLoss. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheldwithheld or delayed, delayed unless the judgment or conditioned. proposed settlement involves only the payment of money damages and does not seek to impose equitable relief.
(c) If the Indemnifying Party fails to defend or fails to prosecute a Third Party Claim or withdraws from defending such defensea claim, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at of the Indemnifying Party's expenseapplicable Third Party Claim and seek reimbursement under this Agreement. If the Indemnified Party assumes the defense of such a Third Party Claim pursuant to this Section 8.4 and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretonot pursue an appeal, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimClaim at the sole cost and expense of the Indemnifying Party.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) Whenever a claim shall arise for indemnification under this Section 7, an "the party entitled to indemnification (the “Indemnified Party" means a ”), shall notify, in writing, the party seeking from whom indemnification for any Loss is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means ”) of such claim and, when known, the party who is obligated to provide facts constituting the basis for such claim. In the event of any such claim for indemnification under Section 11.02 resulting from or 11.3, as applicable. The Indemnified Party agrees to give in connection with a claim or Action by a third party; the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, may assume the defense or thereof at its sole cost and expense; provided, however, that no settlement of any such Third Party Claim at its own expense. In such case, claim or Action shall be made without the Indemnified Party may participate in such defense, but in such case the expenses prior written consent of the Indemnified Party will (which consent may not be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records unreasonably withheld) unless such settlement fully and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse unconditionally releases the Indemnified Party for from all its reasonable out-of-pocket costs and expenses incurred further liability or obligation on the part of the Indemnified Party in providing connection with such accessclaim or Action, personnel and cooperationin which case such consent shall not be required. Upon assumption of If an Indemnifying Party assumes the defense of any such Third claim or Action, the Indemnifying Party Claim shall be entitled to select counsel and take all steps necessary in the settlement or defense thereof; provided, however, that the Indemnified Party may, at its own expense, participate in any such Action with the counsel of its choice. Whether or not the Indemnifying Party assumes the defense of any claim or Action, the Indemnified Party shall not compromise or settle such claim or Action without the prior written consent of the Indemnifying Party (which consent may not be unreasonably withheld).
(b) The Indemnified Party, the Indemnifying Party and their respective legal counsel shall cooperate in the compromise of, or defense against, any claim or Action by a third party; provided that the Indemnified Party shall be entitled to participate in the defense and to employ counsel, at the Indemnified Party’s expense, to assist therein. The Indemnified Party may not settle or compromise any claim over the objection of the Indemnifying Party, except that the Indemnified Party will not pay, or permit to be paid, any part of may settle any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing with respect to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditionedit waives its indemnification under this Agreement. If the Indemnifying Party fails chooses to defend or fails to prosecute or withdraws from any such defenseclaim, then the Indemnified Party will have the right shall make available to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement any books, records or assume other documents or reassume the defense of personnel within its control that are reasonably necessary or appropriate for such Third Party Claimdefense.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) Other than with respect to Third-Party Claims, an "Indemnified Party" means which shall be governed by Section 4.4(b), a party seeking indemnification for any Loss Remainco Indemnitee or a Spinco Indemnitee (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereofeach, as applicable, and an “Indemnitee”) shall notify in writing, with respect to any matter that such Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement, the term "Party which is or may be required pursuant to this Article IV to make such indemnification (the “Indemnifying Party" means ”), within thirty (30) days of such determination, stating in such written notice (i) reasonable details of such Indemnifiable Loss, (ii) the party who amount of the Indemnifiable Loss claimed, if known (and if not known but reasonably estimable, a reasonable estimate of such amount), (ii) to the extent practicable, method of computation of such Indemnifiable Loss and (iii) reference to the provisions of this Agreement in respect of which such right of indemnification is obligated claimed by such Indemnitee or arises; provided, however, that the failure to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give such written notice shall not release the Indemnifying Party prompt written from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a Party or an Affiliate of a Party (a “Third-Party Claim”) as to which such Indemnitee is or reasonably expects to be entitled to indemnification pursuant to this Agreement, such Indemnitee shall promptly notify the Indemnifying Party in writing (which shall include copies of all notices and documents received by the Indemnitee relating to the Third-Party Claim), and in reasonable detail, of the Third-Party Claim (and in any event within the earlier of (x) thirty (30) days within such Indemnitee receiving notice of such Third-Party Claim or (y) two (2) Business Days prior to the final date of the applicable response period under such Third-Party Claim) after receipt by such Indemnitee of notice of the Third-Party Claim; provided, however, that the failure to provide notice of any eventsuch Third-Party Claim pursuant to this or the preceding sentence shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, or the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any claimevent within ten (10) Business Days) after the Indemnitee’s receipt thereof, action, suit, demand, assessment, investigation, arbitration or other proceeding copies of all notices and documents (including court papers) received by or in respect of a third party (a "Third the Indemnitee relating to the Third-Party Claim"; provided, however, that the failure to deliver such notices and documents of shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(c) of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In Other than in the case of indemnification by a Third beneficiary Party Claimof a guarantor Party pursuant to Section 2.11(d) (the defense of which shall be controlled by the beneficiary Party), the Indemnifying Party will have the right shall be entitled, if it so chooses, to direct, through counsel of its own choosing, assume the defense or settlement of any such Third Party Claim at its own expense. In such casethereof, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in if it does not assume the defense or settlement of such Third Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred to participate in providing such access, personnel and cooperation. Upon assumption of the defense of any Third-Party Claim in accordance with the terms of Section 4.5 at such Third Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the Indemnitee, within thirty (30) days of the receipt of an indemnification notice from such Indemnitee; provided, however, that the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim if (x) in the reasonable judgment of the Indemnitee, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s) in the defense of such Third-Party Claim by the Indemnifying Party, (y) the Indemnified party making such Third-Party will not payClaim is a Governmental Body with regulatory or other authority over the Indemnitee or any of its material assets or (z) the Third-Party Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to have a material and adverse effect on the Indemnitee’s business; provided further, that (other than with respect to any indemnification provided in Section 4.2(f)), Spinco shall have the right to assume the defense or permit to be paid, any part control of any claim Third-Party Claim involving any Spinco Asbestos Product Liability or demand arising from such Third Spinco Environmental Matter, and in the case of any Spinco Environmental Matter undertake or take over any associated environmental investigation, monitoring or remediation activities, with counsel, consultants or contractors of recognized standing and competence selected by Spinco and reasonably acceptable to Remainco. In connection with the Indemnifying Party’s defense of a Third-Party Claim, unless such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, at its own expense and, in any event, shall reasonably cooperate with the Indemnifying Party consents in writing such defense and make available to the Indemnifying Party all witnesses, pertinent materials and information (subject to Section 5.7 as applicable) in such payment (which consent will not be unreasonably withheld, delayed Indemnitee’s possession or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for under such liability. No such Third Party Claim may be settled Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. To the extent permitted by law, no Indemnifying Party shall settle or compromise any Third-Party Claim without the written consent of the Indemnified PartyIndemnitee, which such consent will not to be unreasonably withheld, delayed conditioned or conditioneddelayed, unless such settlement (A) completely and unconditionally releases the Indemnitee in connection with such matter, (B) provides relief consisting solely of money damages borne by the Indemnifying Party and (C) does not involve any admission by the Indemnitee of any wrongdoing or violation of a Legal Requirement.
(d) If an Indemnifying Party does not (or is not entitled to) assume responsibility for defending a Third-Party Claim within the period specified in this Section 4.4, such Indemnitee may defend such Third-Party Claim. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party fails shall reasonably cooperate with the Indemnitee in such defense and make available to defend the Indemnitee all witnesses, pertinent materials and information (subject to Section 5.7 as applicable) in such Indemnifying Party’s possession or fails to prosecute under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee. To the extent permitted by law, no Indemnitee may settle or withdraws from such defense, then compromise any Third-Party Claim without the Indemnified Party will have the right to undertake the defense or settlement thereof, at prior written consent of the Indemnifying Party's expense. If , such consent not to be unreasonably withheld, conditioned or delayed.
(e) Except as otherwise set forth in Section 5.6 or to the Indemnified extent set forth in any Ancillary Agreement or the Merger Agreement, following the Closing, the indemnification provisions of this Article IV shall be the sole and exclusive remedy of any Party assumes or member of its Group for any monetary damages or Indemnifiable Losses arising out of, relating to or resulting from this Agreement, the defense Merger Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby and each Party expressly waives and relinquishes any and all rights, claims or remedies such Party or any member of such Third Party Claim pursuant its Group may have with respect to the foregoing other than under this Article IV against any Indemnifying Party; provided, however, that this Section and proposes 4.4(e) shall not limit any equitable remedies available to settle such claim prior to a final judgment thereon any Party under this Agreement, the Merger Agreement or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimany Ancillary Agreement.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Regal Beloit Corp)
Procedures for Indemnification. As used herein, an "The procedures for indemnification shall be as follows:
(A) The party claiming the indemnification (the “Indemnified Party" means ”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party seeking indemnification against the Indemnified Party, specifying (i) the factual basis for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicablesuch claim, and (ii) the term "amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party, such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) business days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party" means .
(B) Following receipt of notice from the party who is obligated Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) business days in which to provide indemnification under Section 11.02 make such investigation of the claim as the Indemnifying Party shall deem necessary or 11.3desirable. For the purposes of such investigation, as applicable. The the Indemnified Party agrees to give make available to the Indemnifying Party prompt written notice and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of any event, said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, action, suit, demand, assessment, investigation, arbitration or other proceeding the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim.
(C) With respect to any claim by or in respect of a third party (a "Third Party Claim") of as to which it has knowledge, for which such the Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claimhereunder, the Indemnifying Party will shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In expense to participate in or, if it so elects, to assume control of the defense of such caseclaim, and the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise shall cooperate fully with the Indemnifying Party in the defense or settlement of such Third Party ClaimParty, and the Indemnifying Party will reimburse the Indemnified Party subject to reimbursement for all its reasonable actual out-of-pocket costs and expenses expense incurred in providing such access, personnel and cooperationby the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. Upon assumption If the Indemnifying Party elects to assume control of the defense of any such Third Party Claim by the Indemnifying Partythird-party claim, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will shall have the right to participate in the settlement defense of such claim at its own expense.
(D) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(E) If the Indemnifying Party does not elect to assume control or reassume otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such Third Party Claimclaim.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) Promptly after receipt by a Tejas Indemnified Party or a Company Indemnified Party (such party, an "the “Indemnified Party" means ”) of written notice of the assertion or the commencement of any proceeding by a third-party seeking indemnification for with respect to any Loss matter referred to in Sections 8.02 (including, but not limited to attorneys feesother than excepted matters) pursuant to Section 11.2 or 11.3 hereof8.03, as applicable, and the term "Indemnified Party shall give written notice thereof to the party(ies) responsible for indemnification pursuant to Sections 8.02 or 8.03 hereof (the “Indemnifying Party" means ”), and thereafter shall keep the Indemnifying Party reasonably informed with respect thereto; provided, however, that failure of the Indemnified Party to give the Indemnifying Party notice as provided herein shall not relieve the Indemnifying Party of their obligations hereunder, except to the extent that the Indemnifying Party are prejudiced thereby. A claim for indemnification for any matter not involving a third-party who proceeding may be asserted by notice to the Indemnifying Party and shall be paid promptly after such notice.
(b) If the facts pertaining to a Loss arise out of the claim of any third party, or if there is obligated any claim against a third party available by virtue of the circumstances of the Loss, the Indemnifying Party may assume the defense or the prosecution thereof by prompt written notice to provide the Indemnified Party, including the employment of counsel or accountants, at its sole cost and expense. In connection therewith, the Indemnifying Party shall acknowledge that such claim is the proper subject of indemnification under Section 11.02 8.02 or 11.38.02, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will shall have the right to directemploy counsel separate from counsel employed by the Indemnifying Party in any such action and to participate therein, through but the fees and expense of such counsel of employed by the Indemnified Party shall be at its own choosing, sole cost and expense. Neither the defense or Indemnifying Party nor the Indemnified Party shall be liable for any settlement of any such Third claim effected without their respective prior written consent, which shall not be unreasonably withheld; provided that if the Indemnifying Party Claim at its own expense. In such casedoes not assume the defense or prosecution of a claim as provided above without thirty (30) days after notice thereof from the Indemnified Party, the Indemnified Party may participate in settle such defense, but in such case claim without the expenses of the Indemnified Party will be paid by the Indemnified Indemnifying Party’s consent. The Indemnified Party will promptly provide Whether or not the Indemnifying Party with access chooses to so defend or prosecute such claim, all the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise parties hereto shall cooperate with the Indemnifying Party in the defense or settlement of prosecution thereof and shall furnish such Third Party Claimrecords, information and testimony, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs attend such conferences, discovery proceedings, hearings, trails and expenses incurred in providing such accessappeals, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal as may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate reasonably requested in the settlement or assume or reassume the defense of such Third Party Claimconnection therewith.
Appears in 1 contract
Sources: Purchase Agreement (Tejas Inc)
Procedures for Indemnification. As used herein, an "Indemnified Party" means (a) Whenever a party seeking indemnification claim shall arise for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.311.1 above, as applicable. The Indemnified Party agrees to give with the Indemnifying Party prompt written notice exception of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or claims for litigation expenses in respect of a third litigation as to which a notice of claim, as provided below in this Section 11.2, has previously been given, which expenses shall be funded on an ongoing basis, the party entitled to indemnification (a the "Third Party ClaimIndemnified Party") shall promptly notify the party from whom indemnification is sought (the "Indemnifying Party") of which it has knowledgesuch claim and, when known, the facts constituting the basis for which such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than 10 business days prior to the time any response to the asserted claim is entitled required, if possible, and in any event within 5 business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability for indemnification under this Article 11it may have if and to the extent that the Indemnifying Party shall not have been prejudiced by such omission. In the case event of any such claim for indemnification resulting from or in connection with a Third Party Claimclaim or Legal Proceeding by a third party, the Indemnifying Party will have the right to directmay, through counsel of at its own choosingsole cost and expense, assume the defense or settlement of any such Third thereof; provided, however, that the Indemnifying Party Claim at shall first have agreed in writing that it does not and will not contest its own expense. In such case, responsibility for indemnifying the Indemnified Party may participate in respect of Losses attributable to such defenseclaim or Legal Proceeding; and, but in such case provided, further, that Seller shall not be entitled to assume the expenses defense of any claim or Legal Proceeding against Buyer or HOLL for Taxes with respect to a period ending after the Indemnified Party will be paid by the Indemnified PartyClosing ▇▇▇▇. The Indemnified Party will promptly provide the If an Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of assumes the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party ClaimLegal Proceeding, unless the Indemnifying Party consents shall be entitled to select counsel and take all steps necessary in writing to such payment (which consent will not the defense thereof; provided, however, that no settlement shall be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party made without the prior written consent of the Indemnified Party, which consent will shall not be unreasonably withheldwithheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, delayed the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or conditionedproceeding in excess of the proposed amount of such settlement); provided, further, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party fails to defend does not assume the defense of any such claim or fails to prosecute or withdraws from such defenseLegal Proceeding in accordance with the terms hereof, then the Indemnified Party will have may defend (and, in the right case of any claim or Legal Proceeding against Buyer or HOLL for Taxes with respect to undertake a period ending after the defense Closing ▇▇▇▇, shall defend) against such claim or settlement thereofLegal Proceeding in such manner as it may deem appropriate, at including, but not limited to, settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party's expense. If , which consent shall not be unreasonably withheld) on such terms as the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretomay deem appropriate, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 11.2; provided, however, that if the Indemnified Party does not obtain the prior written consent of the Indemnifying Party to any such settlement, and such written consent is not unreasonably withheld by the Indemnifying Party, the Indemnified Party shall not be entitled to indemnification hereunder from such Indemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 11.2 to the contrary, if, in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 11.2, (i) the Indemnifying Party shall not have promptly employed counsel reasonably satisfactory to the Indemnified Party or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall not have the right to participate in the settlement or assume or reassume direct the defense of any such Third action on behalf of the Indemnified Party.
(b) If Buyer or HOLL is the Indemnifying Party, all payments by the Indemnifying ▇▇▇▇y pursuant to this Article XI shall be in cash and in immediately available funds. If Seller is the Indemnifying Party, Seller, in its sole discretion, may elect to make all payments pursuant to this Article XI in the form of (m) cash; (n) shares of the Stock Consideration valued at the average closing price of the Common Stock on the NASDAQ National Market for the five (5) business days preceding the Closing Date; or (o) some combination of (m) and (n).
(c) Notwithstanding any other provision in this Agreement, in the absence of fraud or willful misconduct on the part of the Indemnifying Party Claimor any of its employees or agents, an Indemnifying Party shall not be responsible for Losses indemnifiable under this Article XI in excess of Nine Hundred Thousand Dollars ($900,000); provided, however, that the foregoing cap shall not apply to any Losses in respect of Taxes for which Seller has indemnified Buyer under Section 11.1(a).
(d) Except as provided in Section 13.1, the indemnification obligations set forth in Section 11.1 shall expire upon the latter of the filing of a Certificate of Dissolution of Seller with the California Secretary of State or December 31, 2001; provided that such indemnification obligations shall survive with respect to any claims made by an Indemnified Party to the Indemnifying Party under Section 11.1 prior to such latter date.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "(a) A Person who may be entitled to be indemnified and held harmless under Section 3.2 or Section 3.3 (the “Indemnified Party" means ”), shall promptly notify (but in any event within thirty (30) days) the Party that is potentially liable therefor (the “Indemnifying Party”) in writing of any pending or threatened claim, investigation, proceeding or demand by a party seeking Third Party that the Indemnified Party has determined has given or could reasonably give rise to such a right under this Agreement (including a pending or threatened claim or demand asserted by a Third Party against the Indemnified Party, such claim being a “Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand and, if applicable, the specific provision of this Agreement that the Indemnified Party alleges to be breached (or the category of indemnification for into which the Loss fits); provided that the failure to provide such notice shall not release the Indemnifying Party from any Loss of its obligations under this Article III except to the extent the Indemnifying Party is prejudiced by such failure. Following delivery of a notice of a Third-Party Claim, the Indemnified Party shall deliver to the Indemnifying Party, promptly (includingand in any event within ten (10) Business Days) after the Indemnified Party’s receipt thereof, but copies of all notices and documents (including court papers) received by the Indemnified Party relating to such Third-Party Claim; provided that the failure to deliver such notices and documents shall not limited release the Indemnifying Party from any of its obligations except to attorneys feesthe extent the Indemnifying Party shall have been prejudiced as a result of such failure.
(b) Following receipt of a notice of a Third-Party Claim from an Indemnified Party pursuant to Section 11.2 or 11.3 hereof3.4(a), as applicablethe Indemnifying Party may assume the defense and control of such Third-Party Claim by delivery of written notice to the Indemnified Party, and if it does not assume the term "defense of such Third-Party Claim, to participate in the defense of any Third-Party Claim in accordance with the terms of Section 3.5 at such Indemnifying Party" means ’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the party who Indemnified Party, within thirty (30) days of receipt of an indemnification notice of from such Indemnified Party; provided that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party to the extent (i) in the reasonable judgment of the Indemnified Party, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnified Party in the defense of such Third-Party Claim by the Indemnifying Party, (ii) the Third-Party Claim is obligated a criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (iii) the Third-Party Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to provide indemnification under Section 11.02 or 11.3, as applicable. have a material and adverse effect on the Indemnified Party’s business.
(c) The Indemnified Party agrees may take any actions reasonably necessary to give defend such Third-Party Claim prior to the time that it receives a notice from the Indemnifying Party prompt written notice as contemplated by Section 3.4(b). If the Indemnifying Party assumes the defense of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Third-Party Claim, the Indemnifying Party will have shall allow the right Indemnified Party a reasonable opportunity to direct, through counsel participate in the defense of such Third-Party Claim with its own choosing, the defense or settlement of any such Third Party Claim counsel and at its own expense. In such case, and the Indemnifying Party shall not be liable to the Indemnified Party may participate in such defense, but in such case the for legal expenses of subsequently incurred by the Indemnified Party will be paid by in connection with the defense thereof (it being understood and agreed that even if the Indemnified Party. The Indemnified Party will promptly provide participates in the defense of such a Third-Party Claim, the Indemnifying Party shall control the defense and all decisions with access respect thereto). Remainco or Spinco, as the case may be, shall, and shall use their reasonable best efforts to, and to the Indemnified Party's records cause their Affiliates and personnel relating to any such Third Party Claim during normal business hours and will otherwise Representatives to, cooperate fully with the Indemnifying Party in the defense or settlement of such Third any Third-Party Claim. Without limiting the generality of the foregoing, from and after the delivery of a notice of a claim for indemnification, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party will reimburse and its Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to such claim, at no cost to the Indemnifying Party (other than for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense Indemnified Parties). To the extent permitted by Law, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, without the consent of any Indemnified Party; provided that (i) such Third settlement provides only for the payment of monetary damages (and does not impose any injunctive relief or otherwise impose any conditions or restrictions on the applicable Indemnified Party), (ii) the Indemnifying Party pays or causes to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement (subject to the limitations in this Agreement), (iii) the Indemnifying Party obtains, as a condition of any settlement or other resolution, a complete and unconditional release of each Indemnified Party from any and all liability with respect to such Third-Party Claim and (iv) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(d) No Indemnifying PartyParty shall have any liability under this Article III for any Losses arising out of or in connection with any Third-Party Claim that is settled or compromised by an Indemnified Party without the prior consent of such Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
(e) If an Indemnified Party wishes to make a claim under this Article III that does not involve a Third-Party Claim, the Indemnified Party will not pay, or permit shall give written notice to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing setting forth (i) a reasonably detailed description of the claim, (ii) a good faith estimate of the amount of the claim (to such payment the extent ascertainable) and (which consent will not be unreasonably withheld, delayed or conditionediii) or unless a final judgment from which no appeal may be taken by or on behalf the specific provision of this Agreement that the Indemnified Party is entered against alleges to be breached (or other category of indemnification into which the Loss fits), and such notice shall be accompanied by copies of all documentation available to the Indemnified Party for such liability. No such Third Party Claim that may be settled by necessary or appropriate for the purposes of enabling the Indemnifying Party without to be informed and to take any and all appropriate decisions and actions with respect to the written consent matter and Loss that is the subject of the Indemnified Party, which consent will claim; provided that the failure to provide such notice on a timely basis shall not be unreasonably withheld, delayed or conditioned. If release the Indemnifying Party fails from any of its obligations under this Article III except to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give extent the Indemnifying Party prompt written notice thereof is actually prejudiced by such failure. Reasonable and the Indemnifying documented out-of-pocket expenses incurred by current or former Representatives of a Party will have the right to participate in the settlement or assume or reassume the defense another member of such Third Party’s Group (but in no event any compensation expenses of current employees of a Party Claimor another member of a Party’s Group) in connection with another Party’s access to them shall be reimbursed by such other Party promptly following such other Party’s receipt of an invoice specifying in reasonable detail the expenses incurred.
Appears in 1 contract
Sources: Separation and Sale Agreement (International Game Technology PLC)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party (a) A Party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 6.2 or 11.3 hereof, as applicable, and Section 6.3 (the term "Indemnifying “Indemnified Party" means ”) shall provide prompt written notice to the party who is obligated Party required to provide indemnification under Section 11.02 7.2 or 11.3, as applicable. The Indemnified Party agrees to give Section 7.3 (the “Indemnifying Party prompt written notice Party”) of any event, claim or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding carried out by or in respect of a third party (a "“Third Party Claim"”) of which it has knowledge, for which such the Indemnified Party is entitled to indemnification under this Article 11VII. In the case of a Third Party Claim, the The Indemnifying Party will have the right to direct, through counsel of its own choosingchoice, the defense or settlement of any such Third Party Claim at its own expense. In such case, the The Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Partydefense at its own expense. The Indemnified Party will promptly provide the Indemnifying Party with reasonable access to the Indemnified Party's ’s records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such a Third Party Claim, and the . The Indemnifying Party will reimburse the Indemnified Party for all of its reasonable out-of-out of pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such related to a Third Party Claim by the Indemnifying Party, the Claim.
(b) The Indemnified Party will not pay, or permit to be paid, any part of any claim or demand Loss arising from such a Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed withheld or conditioneddelayed) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liabilityLoss. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheldwithheld or delayed, delayed unless the judgment or conditioned. proposed settlement involves only the payment of money damages and does not seek to impose equitable relief.
(c) If the Indemnifying Party fails to defend or fails to prosecute a Third Party Claim or withdraws from defending such defensea claim, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at of the Indemnifying Party's expenseapplicable Third Party Claim and seek reimbursement under this Agreement. If the Indemnified Party assumes the defense of such a Third Party Claim pursuant to this Section 6.4 and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretonot pursue an appeal, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimClaim at the sole cost and expense of the Indemnifying Party.
Appears in 1 contract
Procedures for Indemnification. As used herein, an (a) The party (the "Indemnified Party" means a ") that may be entitled to indemnity hereunder shall give prompt notice to the party seeking indemnification for any Loss obligated to give indemnity hereunder (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of the party who is obligated to provide indemnification under Section 11.02 assertion of any claim, or 11.3the commencement of any suit, as applicableaction or proceeding in respect of which indemnity may be sought hereunder. The Any failure on the part of any Indemnified Party agrees to give the notice described in this Section shall relieve the Indemnifying Party prompt written of its obligations under this Article only to the extent that such Indemnifying Party has been prejudiced by the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 10 days thereof) after the Indemnified Party's receipt thereof, copies of any event, or any all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit, demand, assessment, investigation, arbitration suit or other proceeding by or in respect of a third party proceeding.
(a "Third Party Claim"b) of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will Buyer shall have the right obligation to direct, through counsel of its own choosing, assume the defense or settlement of any such Third Party Claim third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder, provided that (i) Seller shall at all times have the right, at its option and at its own expense. In , to participate fully therein, and (ii) if Buyer does not proceed diligently to defend the third-party claim, suit, action or proceeding within 10 days after receipt of notice of such casethird-party claim, suit, action or proceeding, Seller shall have the Indemnified Party may participate in such defenseright at Buyer's expense, but in such case not the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access obligation, to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of undertake the defense of any such Third third-party claim, suit, action or proceeding.
(c) The Indemnifying Party Claim by the Indemnifying Party, shall not be required to indemnify the Indemnified Party will not pay, or permit with respect to be paid, any part amounts paid in settlement of any claim third-party suit, action, proceeding or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is investigation entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party into without the written consent of the Indemnifying Party; provided, however, that if the Indemnified Party is a Buyer Indemnified Party, which such third-party suit, action, proceeding or investigation may be settled without the consent will not be unreasonably withheld, delayed or conditioned. If of the Indemnifying Party fails on 10 days' prior written notice to defend the Indemnifying Party if such third-party suit, action, proceeding or fails investigation is then unreasonably interfering with the Purchased Business or other operations of Buyer and the settlement is commercially reasonable under the circumstances; and provided further, that if the Indemnifying Party gives 10 days' prior written notice to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or of a settlement thereof, at offer that the Indemnifying Party's expense. If Party desires to accept and to pay all Losses with respect thereto ("Settlement Notice") and the Indemnified Party assumes fails or refuses to consent to such settlement within 10 days after delivery of the defense Settlement Notice to the Indemnified Party, and such settlement otherwise complies with the provisions of this Section , the Indemnifying Party shall not be liable for Losses arising from such Third third-party suit, action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party Claim will consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party, if such judgment or settlement imposes any obligation or liability upon the Indemnified Party other than the execution, delivery or approval thereof and customary releases of claims with respect to the subject matter thereof.
(d) The parties shall cooperate in defending any such third-party suit, action, proceeding or investigation, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of the Indemnified Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of the indemnity granted to such Indemnified Party pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimAgreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Brightstar Information Technology Group Inc)
Procedures for Indemnification. As used Whenever a claim shall arise for indemnification under this Article XII, the party entitled to indemnification (the “Indemnified Party”) shall promptly notify the party from which indemnification is sought (the “Indemnifying Party”) of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten (10) Business Days prior to the time any response to the asserted claim is required, if possible, and in any event within five (5) Business Days following receipt of notice thereof; provided, further, that no delay or failure to give such notice by the Indemnified Party to the Indemnifying Party shall adversely affect any of the other rights or remedies which the Indemnified Party has under this Agreement or the other Operative Documents, or alter or relieve the Indemnifying Party of its obligation to indemnify the Indemnified Party, except to the extent that such delay or failure has materially prejudiced the Indemnifying Party. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof by written notice within 30 calendar days, using counsel that is reasonably satisfactory to the Indemnified Party. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to take all steps necessary in the defense thereof including the settlement of any case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the defense of any claim or Legal Proceeding by a third party as provided herein, an "shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such third party of the Indemnified Party" means ), or consent to the entry of any judgment that does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party seeking indemnification for without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any Loss (investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article XII, including, but not limited to, by providing the other party with reasonable access to attorneys feesemployees and officers (including as witnesses) pursuant to Section 11.2 or 11.3 hereof, and other information. So long as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any eventis in good faith defending such claim or proceeding, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such the Indemnified Party is entitled to indemnification under this Article 11shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. In the case of a Third Party Claim, If the Indemnifying Party will have the right to direct, through counsel of its own choosing, does not assume the defense or settlement of any such Third Party Claim at its own expense. In such caseclaim or litigation in accordance with the terms hereof, the Indemnified Party may participate defend against such claim or litigation in such defensemanner as it may deem appropriate, but in including settling such case claim or litigation (after giving prior written notice of the expenses same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimmay reasonably deem appropriate, and the Indemnifying Party will reimburse promptly indemnify the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption accordance with the provisions of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim12.4.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification (a) No Party shall be liable for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, claim for which such Indemnified Party is entitled to indemnification under this Article 11VII unless written notice of a claim for indemnification is delivered by the Party seeking indemnification (the “Indemnified Party”) to the Party from whom indemnification is sought (the “Indemnifying Party”) prior to the expiration of any applicable survival period set forth in Section 7.1 (in which event the claim shall survive until resolved). In If any third party notifies the case Indemnified Party with respect to any matter which may give rise to a claim for indemnification (a “Third Party Claim”) against the Indemnifying Party under this Article VII, then the Indemnified Party shall notify the Indemnifying Party within 10 Business Days thereof in writing; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. All notices given pursuant to this Section 7.5(a) shall describe with reasonable specificity the nature of the claim, the amount of the claim (to the extent then known) and the basis of the Indemnified Party’s claim for indemnification.
(b) Following receipt of notice in accordance with Section 7.5(a) (other than a notice of a Third Party ClaimClaim against the Indemnified Party, in which case Section 7.5(c) below shall apply), the Indemnifying Party will shall have thirty (30) days from the right date it receives such notice (the “Dispute Period”) to direct, through counsel make such investigation of its own choosingthe claim as the Indemnifying Party deems necessary or desirable. For purposes of such investigation, the Indemnified Party shall make available to the Indemnifying Party all the information related to such claim relied upon by or in possession or control of, the Indemnified Party. If the Indemnifying Party disagrees with the validity or amount of all or a portion of such claim made by the Indemnified Party, the Indemnifying Party shall deliver to the Indemnified Party written notice thereof (the “Dispute Notice”) prior to the expiration of the Dispute Period. If no Dispute Notice is received by the Indemnified Party within the Dispute Period or the Indemnifying Party provides notice that it does not have a dispute with respect to such claim, such claim shall be deemed approved and consented to by the Indemnifying Party (such claim, an “Approved Indemnification Claim”). If a Dispute Notice is received by the Indemnified Party within the Dispute Period and the Indemnified Party and the Indemnifying Party do not agree to the validity and/or amount of such disputed claim, no payment shall be made until such disputed claim is resolved, whether by adjudication of such matter, agreement between the Indemnified Party and the Indemnifying Party, or otherwise (and upon any such resolution, such claim shall be deemed to be an Approved Indemnification Claim). Each Approved Indemnification Claim shall be paid no later than five (5) Business Days after the date on which the subject claim became an Approved Indemnification Claim, in each case by wire transfer of immediately available funds to the account designated in writing by the party entitled to such payment.
(c) After the Indemnified Party has given notice of a Third Party Claim to the Indemnifying Party pursuant to Section 7.5(a), the Indemnifying Party may, at its election, undertake and conduct the defense or settlement of any such Third Party Claim at Claim; provided that the Indemnifying Party fully acknowledges in writing its own expenseindemnification obligations to the Indemnified Party. In such case, the Indemnified Party may continue to participate in such defense, but in such case the expenses defense of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with Claim; provided, however, that following the Indemnifying Party in Party’s assumption of the defense or settlement of such Third Party Claim, and all legal or other expenses subsequently incurred by the Indemnified Party shall be borne by the Indemnified Party unless the Indemnified Party reasonably concludes that the Indemnifying Party will reimburse and the Indemnified Party have conflicting interests, in which case the Indemnified Party shall be indemnified for all its the reasonable out-of-pocket costs fees and expenses incurred in providing such access, personnel and cooperationof one counsel to the Indemnified Party (including one local counsel). Upon assumption of If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not settle or consent to judgment with respect to such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will shall not be unreasonably withheld, delayed conditioned or conditioneddelayed. If (i) the Indemnifying Party fails has failed to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes assume the defense of such Third Party Claim pursuant within ten (10) days of the Indemnified Party’s delivery of notice of such Third Party Claim to this Section and proposes to settle the Indemnifying Party, (ii) such Third Party Claim involves criminal or quasi-criminal allegations or (iii) the Third Party Claim includes a claim prior to a final judgment thereon or to forgo appeal with respect theretofor injunctive relief, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will shall have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim. The Indemnified Party and the Indemnifying Party shall render to each other such assistance as may reasonably be required of each other in order to ensure proper and adequate defense of any Third Party Claim subject to this Section 7.5. To the extent that the Indemnified Party or the Indemnifying Party does not participate in the defense of a particular Third Party Claim, the Party so proceeding with such Third Party Claim shall keep the other party informed of all material developments and events relating to such Third Party Claim. No Indemnified Party shall settle or consent to judgment with respect to any Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. In the event that the Indemnifying Party has consented to any settlement or consented to any judgment and except as otherwise provided in such settlement or judgment, such Indemnifying Party shall not have any power or authority to object to any claim by any Indemnified Person under this Article VII or against the Escrow Fund for indemnity in the amount of such settlement or judgment.
Appears in 1 contract
Procedures for Indemnification. As used herein(a) Any Indemnified Party promptly shall give to the Indemnifying Party a written notice (a “Claim Notice”); provided, an "however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section shall not affect such Indemnified Party" means ’s rights under this Rider, except and only to the extent such failure materially prejudices the Indemnifying Party.
(b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Rider shall be determined: (i) by the Agreement; (ii) by a party seeking indemnification for any Loss (including, but not limited to attorneys fees) final non-appealable determination of a court of competent jurisdiction pursuant to Section 11.2 38; or 11.3 hereof, as applicable, and (iii) by any other means to which the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give and the Indemnifying Party prompt shall agree (a “Final Determination”). All amounts due to the Indemnified Party shall be paid by wire transfer within ten (10) business days after such Final Determination.
(c) An Indemnified Party shall notify the Indemnifying Party in writing, and in reasonable detail, of any Legal Proceeding made by any third Person against the Indemnified Party (a “Third Party Claim”) promptly after receipt by such Indemnified Party of written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "the Third Party Claim") of which it has knowledge. Notwithstanding the foregoing, for which such Indemnified Party is entitled should a party be physically served with a complaint with regard to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnified Party must notify the Indemnifying Party will have with a copy of the right complaint within ten (10) calendar days after receipt thereof and shall deliver a copy of such complaint to directthe Indemnifying Party within ten (10) calendar days after the receipt of such complaint; provided, through counsel of its own choosinghowever, that the defense or settlement failure of any Indemnified Party to give such notice shall not affect such Indemnified Party’s rights under this Rider except and only to the extent such failure materially prejudices the Indemnifying Party.
(d) In the event of the initiation of any Legal Proceeding with respect to a Third Party Claim (in which the only relief sought is monetary damages), the Indemnifying Party may elect, at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses to be represented by counsel of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access its choice (reasonably acceptable to the Indemnified Party's records ) and personnel relating to any such Third Party Claim during normal business hours control and will otherwise cooperate with the Indemnifying Party in the defense or settlement of defend such Third Party Claim; provided, and however, that the Indemnifying Party will reimburse agrees in writing that it is responsible for all Losses in connection therewith (including the fees and expenses incurred by the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon prior to the assumption of the defense of any such Third Party Claim by the Indemnifying Party). The Indemnified Party shall have the right to participate (and to retain legal counsel to participate) in any such defense at its sole cost and expense except in the case where the Indemnified Party shall have reasonably concluded in good faith that representation of both parties by the same counsel would be inappropriate, due to actual or potential differing interests between them, in which case the cost and expenses of counsel to the Indemnified Party shall be paid by the Indemnifying Party. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it or its Affiliates, the Indemnified Party will not paymay, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or permit settle such Legal Proceeding. The parties agree to be paidcooperate fully with each other in connection with the defense, any part negotiation or settlement of any claim such Legal Proceeding or demand arising from demand. Such cooperation shall include the retention and the provision of records and information that are reasonably relevant to such Third Party Claim, and using commercially reasonable efforts to make any person available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not settle, or agree to the entry of a final order in, any such proceeding without the prior written consent of the Indemnified Party unless (i) the sole recourse under such settlement or final order is payment by the Indemnifying Party consents of monetary damages and (ii) such settlement or final order does not obligate the Indemnified Party to admit any liability and includes a full and unconditional release of the Indemnified Parties.
(e) For purposes of this Rider, for the sole purpose of determining the amount of Losses sustained by an Indemnified Party as a result of, arising out of or in writing connection with any breach or inaccuracy of a representation or warranty, or any failure by any Indemnifying Party to perform or comply with any covenant or agreement applicable to it, such payment representation, warranty or covenant shall be deemed to be made without such qualification or limitation (which consent will but such qualification or limitation shall be taken into account in determining the existence of any breach, inaccuracy or failure of such representation, warranty, covenant or agreement).
(f) The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be unreasonably withheld, delayed affected or conditioned) or unless a final judgment from which no appeal may be taken deemed waived by reason of any investigation made by or on behalf of the Indemnified Party is entered against (including by any of its representatives) or by reason of the fact that the Indemnified Party for or any of its representatives knew or should have known that any such liability. No such Third Party Claim may representation or warranty is, was or might be settled inaccurate or by the Indemnifying Party without the written consent reason of the Indemnified Party, which consent will not ’s waiver of any condition hereunder.
(g) Any indemnification payment under the Agreement or this Rider shall be unreasonably withheld, delayed or conditionedconsidered an adjustment to the Purchase Price. If the Indemnifying Party fails to defend Closing has occurred, absent fraud or fails to prosecute or withdraws from such defensewillful misconduct, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section sole and proposes to settle such claim prior exclusive remedy available to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate party in the settlement event of a breach by the other party of any warranty, covenant, or assume other provision of the Agreement, or reassume for any misrepresentation, shall be the defense of such Third Party Claimindemnification provided for under this Rider.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Procedures for Indemnification. As used hereinThe respective obligations and liabilities of the Questor Investors, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicableon the one hand, and the term Company and the Existing Investors, on the other hand (the "Indemnifying Party" means INDEMNIFYING PARTY"), to the other (the "PARTY TO BE INDEMNIFIED") under Section 18(b) hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following procedures:
(A) within 20 days after receipt of notice of commencement of any action or the assertion in writing of any claim by a third party, the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to be indemnified shall give the Indemnifying Party prompt indemnifying party written notice thereof together with a copy of any event, or any such claim, action, suit, demand, assessment, investigation, arbitration process or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In the case of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimlegal pleading, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing; provided that the omission so to notify the indemnifying party will not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 18(c) and shall not relieve the indemnifying party from liability under this Section 18(c) unless such indemnifying party is prejudiced by such omission;
(B) in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement thereofof such claim on behalf of and for the account and risk of the indemnifying party, at subject to the Indemnifying Party's expense. If right of the Indemnified Party assumes indemnifying party to assume the defense of such Third Party Claim pursuant claim at any time prior to settlement, compromise or final determination thereof, provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(C) anything in this Section 18(c) to the contrary notwithstanding (i) if there is a reasonable probability that a claim may materially and proposes adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified, settle or compromise any claim prior or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the party to be indemnified a final judgment thereon or to forgo appeal with release from all liability in respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimclaim; and
(D) in connection with any such indemnification, the indemnified party will cooperate in all reasonable requests of the indemnifying party.
Appears in 1 contract
Sources: Purchase and Registration Rights Agreement (Aegis Communications Group Inc)
Procedures for Indemnification. As used herein(a) Whenever a claim shall arise ----- ------------------------------ for indemnification under Sections 14.1, 14.2 and 14.3, with the exception of claims for litigation expenses in respect of litigation as to which a notice of claim, as provided in this Section 14.4, has previously been given, which expenses shall be funded on an ongoing basis, the party entitled to indemnification (the "Indemnified Party" means a ") shall promptly notify the party seeking from ----------------- which indemnification for any Loss is sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means ") of such claim and, ------------------ when known, the party who is obligated to provide facts constituting the basis for such claim; provided, however, -------- ------- that in the event of any claim for indemnification under Section 11.02 hereunder resulting from or 11.3in connection with any claim or legal proceeding by a third party, as applicable. The the Indemnified Party agrees shall give such notice thereof to give the Indemnifying Party prompt written not later than ten business days prior to the time any response to the asserted claim is required, if possible, and in any event within five business days following receipt of notice thereof. Failure to give timely notice or to include any specified information in any notice required by this Section 14.4 will not effect the rights or obligations of any eventparty hereunder except and only to the extent that, or as a result of such failure, any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is was entitled to indemnification receive such notice was deprived of its right to recover any payment under this Article 11its applicable insurance coverage or was otherwise damaged as a result of such failure. In the case event of any such claim for indemnification resulting from or in connection with a Third Party Claimclaim or legal proceeding by a third party, the Indemnifying Party will have the right to directmay, through counsel of at its own choosingsole cost and expense, assume the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access thereof using counsel who is reasonably satisfactory to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with ; provided, -------- however, that the Indemnifying Party shall first have agreed in writing that it ------- does not and will not contest its responsibility for indemnifying the defense Indemnified Party in respect of Losses attributable to such claim or settlement of proceeding; and provided, however, that if the defendants in any such Third actions include both -------- ------- the Indemnified Party Claim, and the Indemnifying Party will reimburse and the Indemnified Party for all its reasonable out-of-pocket costs shall have reasonably concluded that there may be legal defenses or rights available to it which have not been waived and expenses incurred are in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by actual or potential conflict with those available to the Indemnifying Party, the Indemnified Party will not payshall have the right to select one law firm to act as separate counsel, or permit on behalf of such Indemnified Party, at the expense of the Indemnifying Party. Subject to be paidthe second proviso of the immediately preceding sentence, any part if an Indemnifying Party assumes the defense of any such claim or demand arising from such Third Party Claimlegal proceeding, unless the Indemnifying Party consents shall be entitled to select counsel and take all steps necessary in writing to such payment (which consent will not the defense thereof; provided, however, that no settlement shall be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party made without the -------- ------- prior written consent of the Indemnified Party, which consent will shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement to have suffered Losses in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided, further, that subject to -------- ------- the second proviso of the immediately preceding sentence, the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend does not assume the defense of any such claim or fails to prosecute or withdraws from such defenselitigation in accordance with the terms hereof, then the Indemnified Party will have may defend against such claim or litigation in such manner as it may deem appropriate, including, without limitation, settling such claim or litigation (after giving prior written notice of the right same to undertake the defense or settlement thereof, at Indemnifying Party and obtaining the prior written consent of the Indemnifying Party's expense. If , which consent shall not be unreasonably withheld) on such terms as the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretomay deem appropriate, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 14.4. Notwithstanding the foregoing, at any time after the Indemnifying Party has failed to discharge its liability for legal and other expenses pursuant to this Section 14.4, which failure shall not have been cured, or at any time the right Indemnifying Party is subject to participate a bankruptcy case pursuant to Chapter 7 or Chapter 11 of the U.S. Bankruptcy Code, if the Indemnified Party shall propose to settle a claim as to which it intends to seek indemnity, it shall provide the Indemnifying Party with 21 days' written notice of such proposed settlement, and the Indemnifying Party shall, within such period either (i) consent to the terms of the proposed settlement or (ii) provide the Indemnified Party with (A) a written notice of objection to the proposed settlement, with a statement of reason, (B) reasonable evidence that the financial condition of the Indemnifying Party is sufficient to permit it to pay a judgment for the full amount being sought by the third party claimant (or, at the Indemnified Party's request, a letter of credit in such amount) and (C) an undertaking to satisfy any such judgment.
(b) Notwithstanding anything to the contrary herein contained, in the settlement or assume or reassume event the defense Company is an Indemnifying Party, the Company may settle any third-party claim against an Indemnified Party as long as it obtains an unconditional release from such third party for the benefit of such Third Party ClaimIndemnified Party.
Appears in 1 contract
Procedures for Indemnification. As used Whenever a claim shall arise for indemnification under this Article XI, the party entitled to indemnification (the “Indemnified Party”) shall promptly notify the party from which indemnification is sought (the “Indemnifying Party”) of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten Business Days prior to the time any response to the asserted claim is required, if possible, and in any event within five Business Days following receipt of notice thereof; provided, further, that no delay or failure to give such notice by the Indemnified Party to the Indemnifying Party shall adversely affect any of the other rights or remedies which the Indemnified Party has under this Agreement, or alter or relieve the Indemnifying Party of its obligation to indemnify the Indemnified Party, except to the extent that such delay or failure has materially prejudiced the Indemnifying Party. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof by written notice within 30 calendar days, using counsel that is reasonably satisfactory to the Indemnified Party; provided, however, that in the event of any claim for indemnification by a Purchaser Indemnified Party resulting from a claim or legal proceeding that is reasonably expected to have a continuing effect in any material respect on the Business or the Purchased Assets, the Indemnified Party shall have the right to control the defense thereof pursuant to the last sentence of this Section 11.4. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to take all steps necessary in the defense thereof including the settlement of any case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the defense of any claim or Legal Proceeding by a third party as provided herein, an "shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such third party of the Indemnified Party" means ), or consent to the entry of any judgment that does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party seeking indemnification for without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any Loss (investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article XI, including, but not limited to, by providing the other party with reasonable access to attorneys feesemployees and officers (including as witnesses) pursuant to Section 11.2 or 11.3 hereof, and other information. So long as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any eventis in good faith defending such claim or proceeding, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such the Indemnified Party is entitled to indemnification under this Article 11shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. In the case of a Third Party Claim, If the Indemnifying Party will have the right to direct, through counsel of its own choosing, does not assume the defense or settlement of any such Third Party Claim at its own expense. In such caseclaim or litigation in accordance with the terms hereof, the Indemnified Party may participate defend against such claim or litigation in such defensemanner as it may deem appropriate, but in including settling such case claim or litigation (after giving prior written notice of the expenses same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimmay reasonably deem appropriate, and the Indemnifying Party will reimburse promptly indemnify the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption accordance with the provisions of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claim11.4.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dana Corp)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party (a) A Party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 7.2 or 11.3 hereof, as applicable, and Section 7.3 (the term "Indemnifying “Indemnified Party" means ”) shall provide prompt written notice to the party who is obligated Party required to provide indemnification under Section 11.02 7.2 or 11.3, as applicable. The Indemnified Party agrees to give Section 7.3 (the “Indemnifying Party prompt written notice Party”) of any event, claim or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding carried out by or in respect of a third party (a "“Third Party Claim"”) of which it has knowledge, for which such the Indemnified Party is entitled to indemnification under this Article 11VII. In the case of a Third Party Claim, the The Indemnifying Party will have the right to direct, through counsel of its own choosingchoice, the defense or settlement of any such Third Party Claim at its own 23 expense. In such case, the The Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Partydefense at its own expense. The Indemnified Party will promptly provide the Indemnifying Party with reasonable access to the Indemnified Party's ’s records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such a Third Party Claim, and the . The Indemnifying Party will reimburse the Indemnified Party for all of its reasonable out-of-out of pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such related to a Third Party Claim by the Indemnifying Party, the Claim.
(b) The Indemnified Party will not pay, or permit to be paid, any part of any claim or demand Loss arising from such a Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed withheld or conditioneddelayed) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liabilityLoss. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheldwithheld or delayed, delayed unless the judgment or conditioned. proposed settlement involves only the payment of money damages and does not seek to impose equitable relief.
(c) If the Indemnifying Party fails to defend or fails to prosecute a Third Party Claim or withdraws from defending such defensea claim, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at of the Indemnifying Party's expenseapplicable Third Party Claim and seek reimbursement under this Agreement. If the Indemnified Party assumes the defense of such a Third Party Claim pursuant to this Section 8.4 and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretonot pursue an appeal, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimClaim at the sole cost and expense of the Indemnifying Party.
Appears in 1 contract
Sources: Asset Purchase Agreement
Procedures for Indemnification. As used herein, an "9.3.1. The party that may be entitled to indemnity hereunder (the “Indemnified Party" means a ”) shall give prompt notice (“Notice of Claim”) to the party seeking indemnification for any Loss obligated to give indemnity hereunder (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means ”) of the party who is obligated to provide indemnification under Section 11.02 assertion of any claim, its receipt of a notice threatening a claim, or 11.3the commencement of any suit, as applicableaction or proceeding in respect of which indemnity may be sought hereunder. The Any failure on the part of any Indemnified Party agrees to give notice within thirty (30) days of the assertion of such claim shall relieve the Indemnifying Party prompt written of its obligations under this Section 9 only to the extent that such Indemnifying Party has been prejudiced by the lack of such notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period between (a) thirty (30) days after the assertion of the claim and (b) the date notice was provided to the Indemnifying Party). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any eventevent within ten (10) days thereof) after the Indemnified Party’s receipt thereof, or any copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suitsuit or proceeding.
9.3.2. The Indemnifying Party shall have thirty (30) days from the receipt of the Notice of Claim (the “Notice Period”) to notify the Indemnified Party (i) whether or not the Indemnifying Party disputes the Indemnifying Party’s liability to the Indemnified Party hereunder with respect to such claim or demand and (ii) if the Indemnifying Party does not dispute such liability, whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend against such claim or demand, assessmentprovided that, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such the Indemnified Party is entitled hereby authorized (but not obligated) prior to indemnification under this Article 11and during the Notice Period to file any motion, answer or other pleading which the Indemnified Party shall deem necessary or appropriate to protect the Indemnified Party’s interests. In the case of a Third event that the Indemnifying Party Claimnotifies the Indemnified Party within the Notice Period that the Indemnifying Party does not dispute the Indemnifying Party’s obligation to indemnify hereunder and desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party will shall have the right to directdefend by appropriate proceedings, through counsel of its own choosingwhich proceedings shall be promptly settled or prosecuted by the Indemnifying Party to a final conclusion. If the Indemnified Party desires to participate in, the but not control, any such defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate do so at the Indemnified Party’s sole cost and expense. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, by giving the Indemnified Party timely notice as provided above, then the Indemnified Party, without waiving any rights against the Indemnifying Party, may settle or defend against any such claim in such defensethe Indemnified Party’s sole discretion and, but in such case if it is ultimately determined that the Indemnifying Party is responsible therefor under this Section 9 then the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any settlement or judgment and all indemnifiable costs and expenses of the Indemnified Party will be paid by the Indemnified Partywith respect thereto, including interest as provided in this Section 9. The Indemnified Party will promptly provide If the Indemnifying Party with access does not give the Indemnified Party notice during the Notice Period that the Indemnifying Party disputes the Indemnifying Party’s liability to the Indemnified Party's records and personnel relating Party with respect to any such Third Party Claim during normal business hours and will otherwise cooperate with claim or demand, the Indemnifying Party in shall be deemed to be liable for such claim or demand and the defense or settlement of such Third Indemnified Party Claim, and shall be entitled to recover from the Indemnifying Party will reimburse the Indemnified Party for amount of any settlement or judgment and all its reasonable out-of-pocket indemnifiable costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against with respect thereto, including interest as provided in this Section 9.
9.3.3. If the Indemnifying Party has provided the Indemnified Party for such liability. No such Third Party Claim may be settled by notice during the Notice Period that the Indemnifying Party disputes the Indemnifying Party’s liability to the Indemnified Party with respect to the claim or demand involving a third-party suit, action, proceeding or investigation, the Indemnifying Party shall not be required to indemnify the Indemnified Party with respect to any amounts paid in settlement of any third-party suit, action, proceeding or investigation entered into without the written consent of the Indemnifying Party; provided, however, that if the Indemnifying Party gives ten (10) days’ prior written notice to the Indemnified Party of a settlement offer which the Indemnifying Party desires to accept and to pay all Losses with respect thereto (“Settlement Notice”) and the Indemnified Party fails or refuses to consent to such settlement within ten (10) days after delivery of the Settlement Notice to the Indemnified Party, which consent will not be unreasonably withheldand such settlement otherwise complies with the provisions of this Section 9.3, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws shall not be liable for Losses arising from such defensethird-party suit, then action, proceeding or investigation in excess of the amount of such settlement. Notwithstanding the foregoing, the Indemnifying Party shall not settle any Claim without the consent of the Indemnified Party if: (i) the amount of any such settlement exceeds the Seller Basket, or (ii) the settlement will have a material adverse effect on the business, operations, assets, properties, prospects or condition (financial or otherwise) of the Indemnified Party.
9.3.4. The Parties shall cooperate in defending any such third-party suit, action, proceeding or investigation, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of the Indemnified Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party in any suit, action, claim or proceeding brought by a third party, as to which any right to undertake the defense of indemnity created by this Agreement would or settlement thereofmight apply, at the sole cost and expense of the Indemnifying Party's expense. If , for the purpose of enforcing any right of the indemnity granted to such Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party ClaimAgreement.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "The procedures for indemnification will be as follows:(a)
(a) The Party claiming indemnification under this Agreement (the “Indemnified Party" means ”) must give written notice (a party seeking “Claim Notice”) to the Party from whom the indemnification for any Loss is claimed (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice ”) of any event, or any claim, action, suit, demand, assessment, investigation, arbitration whether between the Parties or other proceeding brought by or in respect of a third party (a "Third Party Claim"against the Indemnified Party, specifying (i) the factual basis for such claim, (ii) the amount, if then known, of which it has knowledge, for which any Losses incurred or reasonably expected to be incurred by the Indemnified Party with respect to such claim and (iii) a statement that the Indemnified Party is entitled to indemnification under this Article 115 for such claim. In If a claim relates to Litigation filed by a Third Party or other claim made by a Third Party against the case Indemnified Party (a “Third Party Claim”), such Claim Notice shall be given by the Indemnified Party to the Indemnifying Party promptly, but in any event within sixty (60) days after receipt by the Indemnified Party of written notice of such Litigation. Failure to give prompt notice will not affect the indemnification obligations under this Agreement except and only to the extent that the Indemnifying Party actually forfeits rights or defenses by reason of such failure.
(b) Following receipt of a Claim Notice from the Indemnified Party that involves a Third Party Claim, the Indemnifying Party will have the right to directright, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, to participate in or, if it so elects (by written notice to the Indemnified Party may participate in such defense, but in such case the expenses delivered no later than ten (10) days after receipt of the Indemnified Party will be paid by Claim Notice), to assume control of the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party defense of such claim with access counsel reasonably satisfactory to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with ; provided, that, if the Indemnifying Party in elects to assume the defense defense, then (i) the Indemnifying Party shall at all times diligently conduct such defense, and (ii) no compromise or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled effected by the Indemnifying Party without the written consent of the Indemnified Party’s prior written consent, which consent will shall not be unreasonably withheld, delayed conditioned or conditioned. delayed, unless (A) there is no finding or admission of any violation by the Indemnified Party of any Law or of any rights of any Person, (B) the Indemnified Party receives a full release of and from any and all other claims that may be made against the Indemnified Party by the Third Party or Third Parties bringing the Third Party Claim, and (C) the sole relief provided in compromise or settlement is monetary Losses that are paid in full by the Indemnifying Party.
(c) Notwithstanding anything herein to the contrary, if the Indemnifying Party is Seller, then Seller (as the Indemnifying Party) shall not be entitled to control the defense of, pay or settle any Third Party Claim if (i) such claim arises in connection with any criminal proceeding, action, indictment, allegation or investigation involving a Governmental Authority; (ii) such claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between Seller (as the Indemnifying Party) and the Indemnified Party; or (iv) such claim is with respect to Taxes.
(d) If the Indemnifying Party fails to defend does not assume the defense of a Third Party Claim, or fails to prosecute or withdraws from such defenseif the Indemnifying Party does not diligently conduct the defense of a Third Party Claim as reasonably determined by the Indemnified Party, then the Indemnified Party will may, without waiving any of its rights under this Agreement, conduct the defense of the Third Party Claim, and, upon receipt of the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed), may compromise or settle such Third Party Claim. Further, if the Indemnifying Party is otherwise entitled to control the defense of a Third Party Claim under this Agreement, and if the Indemnifying Party timely elects to do so, the Indemnified Party shall nevertheless have the right to undertake the defense control, pay or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of settle any such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then so long as the Indemnified Party will give waives in writing, in form and substance satisfactory to the Indemnifying Party, any right to indemnification therefor by the Indemnified Party.
(e) With respect to any Third Party prompt written notice Claim, the party not controlling the defense thereof and (the Indemnifying Party “Non-Controlling Party”) will have the right to participate in the settlement defense of such claim at its own expense; provided, however, that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably and in good faith concludes that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Third Party Claim, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered Losses for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party reasonably advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Third Party Claim (including copies of any summons, complaint or assume other pleading which may have been served on such party and any written claim, demand, invoice, billing or reassume other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third Party Claim.
(f) Any claim under this Article 5 for any matter involving a Third Party Claim shall be indemnified, paid, or reimbursed upon receipt of written demand therefor by the Indemnified Party, subject to the limitations in this Article 5. If the Indemnified Party is the Controlling Party, the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the costs of investigation and the reasonable fees and expenses of counsel retained by the Indemnified Party in connection with such defense, subject to the limitations in this Article 5.
(g) Following receipt of a Claim Notice from the Indemnified Party that does not involve a Third Party Claim, the Indemnifying Party will have 90 days in which to make such investigation of the claim as the Indemnifying Party may deem necessary or desirable. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of such 90-day period (or any agreed upon extension thereof) to the validity and amount of such claim, the Indemnifying Party will immediately pay to the Indemnified Party the full amount of the claim, subject to the limitations in this Article 5. In the event that the Indemnified Party and the Indemnifying Party are unable to agree on whether Losses exist or on the amount of such Losses within the 90-day period after delivery of a Claim Notice, or the Indemnifying Party does not respond to the Claim Notice, then the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(h) For the purpose of the procedures set forth in this Section 5.1.5, any indemnification claims by any Buyer Indemnitee will be made by and through Buyer and any indemnification claims by any Seller Indemnitee will be made by and through Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Blue Water Biotech, Inc.)
Procedures for Indemnification. As used hereinIf any suit, an "action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any party in respect of which indemnity may be sought pursuant to this Section 7, such party (the “Indemnified Party" means a ”) shall promptly give written notice thereof to the party seeking indemnification for any Loss against whom such indemnity may be sought (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "“Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3”); provided, as applicable. The Indemnified Party agrees that, failure to give such notice shall not relieve the Indemnifying Party prompt written of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. The notice shall state the information then available regarding the amount of any event, the claim or any claim, action, suit, demand, assessment, investigation, arbitration Liabilities and shall specify the provision or other proceeding by or in respect provisions of a third party (a "Third Party Claim") of this Agreement under which it has knowledge, for which such Indemnified Party is entitled the right to indemnification under this Article 11is being asserted. In the case of a Third Party ClaimIf within thirty (30) days after receiving such notice, the Indemnifying Party will have gives written notice to the Indemnified Party acknowledging its obligation to indemnify and stating that it intends to defend against such claim or Liabilities at its own cost and expense, the defense (including the right to directsettle or compromise such action) of such matter, through including selection of counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access (subject to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will shall not be unreasonably withheldwithheld or delayed) and the sole power to direct and control such defense, delayed or conditionedshall be by the Indemnifying Party. If In any such defense, the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then will consult with the Indemnified Party will have the right to undertake the defense or settlement thereof, at in connection with the Indemnifying Party's expense’s defense. If Notwithstanding the foregoing, in connection with any claim in which the Indemnified Party assumes reasonably concludes, based upon the advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim pursuant claim or (y) there are specific defenses available to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give which are different from or additional to those available to the Indemnifying Party prompt written notice thereof and which could be materially adverse to such Indemnifying Party, or (z) such claim involves the seeking of non-monetary relief, the Indemnifying Party will shall have the right to participate in the settlement or assume or reassume in, but not direct, the defense of such Third action or proceeding on behalf of the Indemnified Party. In such an event, the Indemnifying Party Claimshall pay the reasonable fees and disbursements of its own counsel and one counsel (including any local counsel) to the Indemnified Party. Any such separate firm sought to be retained by the Indemnified Party with respect to which the Indemnified Party seeks to be indemnified by the Indemnifying Party shall be designated in writing by the Indemnified Party. The Indemnifying Party shall not be liable for any settlement of any proceeding effectuated without its written consent (which shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, if no such notice of intent to dispute and defend is given by the Indemnifying Party with regard to an indemnifiable claim hereunder, or if such diligent good faith defense is not being or ceases to be conducted with regard to the indemnifiable claim, the Indemnified Party shall, at the expense of the Indemnifying Party, undertake the defense of such claim or Liabilities with counsel selected by the Indemnified Party, and shall have the right to compromise or settle the same exercising reasonable business judgment. The Indemnified Party shall use its commercially reasonable efforts to make available all information and assistance that the Indemnifying Party may reasonably request and shall cooperate with the Indemnifying Party in such defense. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not settle any claims of third parties for which indemnification is payable hereunder without the consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Share Purchase Agreement (Institutional Financial Markets, Inc.)
Procedures for Indemnification. As used hereina. If any claim, an "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 suit or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any eventother legal proceeding shall be commenced, or any claim, action, suit, demand, assessment, investigation, arbitration suit or other legal proceeding by be asserted, against either Party hereto or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is any other Person entitled to indemnification under hereunder, and such Party or other Person (the "Indemnified Party") proposes to demand or seek indemnification pursuant to this Article 11. In ARTICLE 12, the case Indemnified Party shall as soon as practicable (and in any event within ten (10) business days from the time that it receives written notice of a Third such claim, suit or other legal proceeding) notify in writing the Party Claimagainst whom indemnification is sought (the "Indemnifying Party") to such effect, and the Indemnifying Party will shall have the right to directassume, through counsel of at its own choosingfull cost and expense, the defense or settlement control of any the legal proceeding (including the selection of counsel); provided, however, that failure to give such Third notice shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party Claim at its own expenseshall have been actually and materially prejudiced as a result of such failure. In such caseIf the Indemnifying Party assumes the defense, the Indemnified Party may participate shall deliver to the Indemnifying Party promptly, and in such any event within five (5) business days following written notice that the Indemnifying Party has assumed the defense, but in such case the expenses of all information and documentation received by the Indemnified Party will be paid by from the Indemnified PartyPerson making the claim with respect to such claim, suit or other legal proceeding. The Indemnified Party will promptly provide shall have the right to participate (at its cost and expense with counsel of its choice) in the defense thereof, subject to the rights of the Indemnifying Party with access to control the defense. The Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise shall cooperate fully in all respects with the Indemnifying Party in the defense or settlement of any such Third Party Claimdefense, and the in any compromise or settlement. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such accessnot compromise or settle any claim, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, suit or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party other legal proceeding without the written consent approval of the Indemnified Party, which consent approval will not be unreasonably withheld; provided, delayed however, that the Indemnified Party shall consent to any compromise or conditioned. If settlement recommended by the Indemnifying Party fails to defend pay an agreed amount in respect of the liability in connection with such claim, suit or fails to prosecute other legal proceeding; provided, that such compromise or withdraws from such defense, then settlement fully releases the Indemnified Party will from any further claim with respect to the applicable matter.
b. Notwithstanding any other provision of this SECTION 12.6, to the extent that a claim, suit or other legal proceeding is based on Licensed Intellectual Property, Seller shall have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes assume and control the defense of such Third Party Claim pursuant claim, suit or other legal proceeding, at its full cost and expense, to this Section and proposes the extent related to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretoLicensed Intellectual Property; provided, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will (i) Purchaser shall have the right to participate in such defense and retain counsel of its choice at Purchaser's cost and expense (subject to Seller's right to control such defense) (ii) Seller shall not settle such claim, suit or legal proceeding without Purchaser's consent, such consent not to be unreasonably withheld, and (iii) Purchaser shall not settle any claim, suit or other legal proceeding based upon the settlement Licensed Intellectual Property without Seller's consent, such consent not to be unreasonably withheld.
c. Payments under this ARTICLE 12 and under ARTICLE 9 shall be treated by Purchaser and Seller as purchase price adjustments, and Purchaser and Seller shall file all Tax Returns consistent with such treatment. Notwithstanding anything to the contrary contained in this Agreement, Purchaser shall not be indemnified or assume reimbursed for any tax consequences arising from receipt of an indemnity payment, including without limitation any adjustments to the basis of any asset resulting from an adjustment to the purchase price or reassume any additional or reduced taxes resulting from any such basis adjustment.
d. Except as set forth in SECTION 13.7 (Remedies) or as primarily related to the defense of such Third Party Claim.Guaranteed Receivables Amount or any other indemnification obligations in this Agreement, the sole remedy for any claim, suit, or other legal proceeding by a
Appears in 1 contract
Sources: Asset Purchase Agreement (Tcsi Corp)
Procedures for Indemnification. As used herein, 1. If any Buyer Indemnified Party or Seller Indemnified Party (an "“Indemnified Party" means a party seeking indemnification ”) believes that it has suffered or incurred any Losses for any Loss (including, but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11VIII, the Indemnified Party shall promptly notify the Party from whom indemnification is sought (the “Indemnifying Party”) in writing of such claim, specifying in reasonable detail the nature of the claim, the amount of Losses claimed (to the extent known), and the basis for the claim. In The failure to provide such notice shall not relieve the case Indemnifying Party of its indemnification obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced by such failure.
2. If the claim for indemnification is based upon a claim asserted by a third party against the Indemnified Party (a “Third Party Claim”), the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within thirty (30) days after receipt of notice of the Third Party Claim, to assume the Defense of such Third Party Claim at the Indemnifying Party’s expense with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the Defense of a Third Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise shall cooperate with the Indemnifying Party in the defense Defense thereof. The Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement of such with respect to the Third Party Claim, and Claim without the Indemnifying Party will reimburse prior written consent of the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will shall not be unreasonably withheld, delayed conditioned, or conditioneddelayed) unless such judgment or unless a final judgment from which no appeal may be taken by or on behalf settlement includes an unconditional release of the Indemnified Party is entered against the Indemnified Party for such liability. No from all liability arising out of such Third Party Claim may be settled and does not include any admission of liability or wrongdoing by the Indemnified Party.
3. If the Indemnifying Party does not assume the defense of a Third Party Claim within the time period specified in Section 8.4(b), the Indemnified Party shall have the right to defend, compromise, or settle such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party, Indemnifying Party (which consent will shall not be unreasonably withheld, delayed conditioned, or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such Third Party Claimdelayed).
Appears in 1 contract
Procedures for Indemnification. As used hereinIf any action, an "Indemnified Party" means suit or proceeding shall be commenced against, or any claim or demand be asserted against, the Company or Purchaser, as the case may be, in respect of which the Company or Purchaser is entitled to demand indemnification under Section 8 of this Agreement, then as a condition precedent thereto, the party seeking indemnification for any Loss (including, but not limited "INDEMNITEE") shall promptly notify the other party ("INDEMNITOR") in writing to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicablethat effect, and with reasonable particularity and with reference to the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicableapplicable provision(s) of this Agreement. The Indemnified Party agrees Indemnitor shall have the right to give assume the Indemnifying Party prompt written notice entire control of any eventthe defense, compromise or any claim, settlement of such action, suit, proceeding or claim and including the selection of counsel, subject to the right of the Indemnitee to participate (at its expense and with counsel of its choice) in the defense, compromise or settlement of such action, suit, proceeding, claim or demand, assessmentand in connection therewith, investigationthe Indemnitee shall cooperate fully in all respects with the Indemnitor in any such defense, arbitration compromise or other proceeding settlement. The Indemnitor will not compromise or settle any such action, suit, proceeding, claim or demand without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld or delayed. So long as the Indemnitor is defending in good faith any such action, suit, proceeding, claim or demand asserted by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article 11. In against the case of a Third Party ClaimIndemnitee, the Indemnifying Party Indemnitee shall not settle or compromise such action, suit, proceeding, claim or demand without the prior written consent of the Indemnitor, which consent will have not be unreasonably withheld or delayed. The Indemnitee shall make available to the right Indemnitor or its agents all records and other materials in the Indemnitee's possession reasonably required for contesting any third party claim or demand. If the Indemnitor shall fail to directpromptly and adequately defend any such action, suit, proceeding, claim or demand, then the Indemnitee may defend, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such caseaction, the Indemnified Party may participate in such defensesuit, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claimproceeding, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless and (so long as Indemnitee gives the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf Indemnitor at least [NUMBER] days' notice of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent terms of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If proposed settlement thereof and permits the Indemnifying Party fails Indemnitor to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at thereof if Indemnitor objects to the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes proposed settlement) to settle such action, suit, proceeding, claim prior or demand and to a final judgment thereon or to forgo appeal with respect thereto, then recover from the Indemnified Party will give Indemnitor the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense amount of such Third Party ClaimLosses.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "(a) If a claim for Damages is to be made by any of the NETGEAR Indemnified Parties pursuant to this Article X (the “Indemnified Party" means a party seeking indemnification for any Loss (including”), but not limited to attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and the term "Indemnifying Party" means the party who is obligated to provide indemnification under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to give written notice to the Designated Principals (the “Indemnifying Parties”) promptly and in any event not later than sixty (60) days after the date the Indemnified Party shall first become aware of such claim of the assertion of any fact, condition, event, claim, action or proceeding that may give rise to Damages in respect of which indemnity may be sought under this Article X (a “Claim”); provided that the failure to give such prompt notice shall not affect the rights of the Indemnified Party except to the extent the Indemnifying Party prompt written is actually prejudiced by such failure. The notice shall state in reasonable detail the information then available regarding the amount and nature of the Claim and shall specify the provision or provisions of this Agreement under which the Claim is asserted. The Indemnifying Party shall be deemed to have accepted the notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect the Claim and to have agreed to pay the Damages at issue if such Indemnifying Party does not send a notice of a third party (a "Third Party Claim") of which it has knowledge, for which such disagreement to the Indemnified Party is entitled to indemnification under this Article 11within sixty (60) calendar days after receiving notice of the Claim. In the case of a Third Party disputed Claim, the parties shall use their reasonable best efforts to resolve the matter internally on an expeditious basis and in any event within forty-five (45) calendar days after notice is received by the Indemnifying Party. If after such forty-five (45) calendar day period has passed, the parties have not mutually resolved the matter, then the Indemnified Parties may initiate legal proceedings with respect to such Claim.
(b) If any lawsuit or enforcement action is filed against any Indemnified Party, written notice thereof shall be given to the Indemnifying Party will have as promptly as practicable (and in any event no later than the right earlier of (i) ten (10) calendar days after the service of the citation or summons and (ii) sixty (60) days after the Indemnified Party shall first become aware of the filing of such suit or action); provided that the failure to directgive such notice shall not affect the rights of the Indemnified Party except to the extent the Indemnifying Party is actually prejudiced by such failure. After such notice, through provided that the Indemnifying Party acknowledges in writing, based on the information then available to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, by written notice to the Indemnified Party given within fifteen (15) calendar days after the date of notice of the claim from the Indemnified Party pursuant to the first sentence of this paragraph (b), at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action (except with respect to any claims for equitable relief, provided that the Indemnified Party shall consult with the Indemnifying Party in connection with any such proceeding), (ii) to employ and engage attorneys of its own choice to handle and defend the same, unless the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, in which event the Indemnified Party shall be entitled, at the Indemnifying Party’s cost, risk and expense, to engage separate counsel of its own choosing, the defense and (iii) to compromise or settle such claim, which compromise or settlement of any such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will shall be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party made only with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which such consent will not to be unreasonably withheldwithheld (it being agreed that it shall be reasonable to withhold such consent if such compromise or settlement does not include a complete release of the Indemnified Party from all liability with respect thereto, delayed or conditionedimposes any liability on the Indemnified Party). The Indemnified Party shall cooperate at the expense of the Indemnifying Party in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Indemnifying Party fails to defend or fails assume the defense of such claim within fifteen (15) calendar days after the notice of the claim referred to prosecute or withdraws from such defensein the first sentence of this paragraph (b), then the Indemnified Party against which such claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense or settlement thereofundertake, at the Indemnifying Party's ’s cost, risk and expense, the defense, compromise or settlement of such claim. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect theretothe claim, then the Indemnified Party will give keep the Indemnifying Party prompt written notice thereof and reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party will have the right to participate in shall be liable for indemnifiable Damages arising from the settlement or assume or reassume resolution of any claim pursuant to and in accordance with this Section 10.3 (subject to the defense indemnification provisions of such Third Party Claimthis Article X (and the limitations contained herein) and the Escrow Agreement).
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Sources: Merger Agreement (Netgear Inc)