Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.” (b) If any third party shall notify the Indemnified Party with respect to any matter (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure. (c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof. (d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Teletech Holdings Inc), Stock Purchase Agreement (Teletech Holdings Inc), Stock Purchase Agreement (Insight Enterprises Inc)
Matters Involving Third Parties. (a) For The party or parties making a claim for indemnification under this Article XI shall be for the purposes of this Section 11.3, a party against which indemnification may be sought is Agreement referred to as the “Indemnifying "Indemnified Party” " and the party which may be entitled to indemnification is or parties against whom such claims are asserted under this Article XI shall be, for the purposes of this Agreement, referred to as the “"Indemnifying Party". All claims by any Indemnified Party.”Party under this Article XI shall be asserted and resolved as follows:
(bi) If In the event that (x) any third party shall notify claim, demand or action is asserted or instituted by any person other than the parties to this Agreement or their Affiliates which could give rise to CNCO Damages or Company Damages, as applicable, for which an Indemnifying Party could be liable to an Indemnified Party with respect to any matter under this Agreement (such claim or demand or action, a “"Third Party Claim”" or (y) that may give rise to any Indemnified Party under this Agreement shall have a claim for indemnification against the to be indemnified by any Indemnifying Party under this Section 11Agreement which does not involve a Third Party Claim (such claim, then a "Direct Claim"), the Indemnified Party shall promptly notify each with reasonable promptness send to the Indemnifying Party thereof in writing setting forth, in reasonable detail, a written notice specifying the nature and basis of the claim such claim, demand or action and the amount or estimated amount thereof, to provided that a delay in notifying the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless of its obligations under this Agreement except to the extent that (and then solely only to the extentextent that) such failure shall have caused the CNCO Damages or Company Damages, as applicable, for which the Indemnifying Party is thereby materially prejudiced by obligated to be greater than such failure.
(c) The Indemnifying Party mayCNCO Damages or Company Damages, at its own expenseas applicable, participate in the defense of any claim, suit, action or proceeding by providing written notice to would have been had the Indemnified Party and delivering to given the Indemnified Indemnifying Party a written agreement that prompt notice (which amount or estimated amount shall not be conclusive of the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out final amount, if any, of such claim, suitdemand or action) (a "Claim Notice").
(ii) Except as provided below, action or proceedingin the event of a Third Party Claim, and that the Indemnifying Party shall be liable for entitled to control the entire amount defense of such Third Party Claim and to appoint counsel of the Indemnifying Party's choice at the expense of the Indemnifying Party to represent the Indemnified Party and any Loss, at any time during others the course of any Indemnifying Party may reasonably designate in connection with such claim, suit, demand or action or proceeding, assume (in which case the defense thereof, Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by any Indemnified Party except as set forth below); provided that the Indemnifying Party’s such counsel is reasonably satisfactory acceptable to the Indemnified Party, and the . Notwithstanding an Indemnifying Party shall thereafter consult with the Party's election to appoint counsel to represent an Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time in connection with respect to such claima Third Party Claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the an Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof of such claim and to employ counselcounsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party (except as provided below and except for any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense which, at its own expensenotwithstanding the foregoing, separate from the counsel employed shall be borne by the Indemnifying Party). If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation If requested by the Indemnifying Party’s counsel of both , the Indemnified Party agrees to cooperate with the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate its counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in contesting any such claim, action, suit demand or proceeding and action which the Indemnifying Party defends, or, if appropriate and related to the claim, demand or action in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person. The Indemnifying Party shall not be entitled to assume control of the defense of a Third Party Claim and shall pay the reasonable fees and disbursements expenses of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made counsel retained by the Indemnified Party (provided that such counsel is reasonably acceptable to the Indemnifying Party) if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would reasonably be likely to be materially detrimental to the Indemnified Party's reputation or business, (iii) the claim seeks an injunction or equitable relief against the Indemnified Party or (iv) the claim involves liabilities under environmental laws that require remedial action at facilities that were transferred pursuant to this Agreement, in which case the Indemnified Party shall have control and management authority over the resolution of such claims, including hiring environmental consultants and conducting environmental investigations and cleanups; provided that the Indemnified Party shall keep the Indemnifying Party apprised of any major developments relating to any such environmental claim and provided further that, in the case of any of (i) through (iv) above, (x) the Indemnified Party shall not agree to any stipulation to or the entry of a court order that adversely affects the Indemnifying Party without the Indemnifying Party's consent and (y) the Indemnifying Party shall have the right to retain counsel of its choice at its own expense and participate in the defense of the Third Party Claim, in which case the third sentence of this Section 11.4(ii) shall be fully applicable. No Third Party Claim (regardless of whether the Indemnifying Party has assumed control of such Third Party Claim or such Third Party Claim falls into any of the categories set forth in (i) through (iv) above) may be settled or compromised (i) by the Indemnified Party without the prior written consent of the Indemnifying Party, as the case may be, of any such claim, suit, action which consent shall not be unreasonably withheld or proceeding of the kind referred to in this Section 11.3 shall also be binding upon delayed or (ii) by the Indemnifying Party or without the prior written consent of the Indemnified Party, as which consent shall not be unreasonably withheld or delayed. In the case may beevent any Indemnified Party settles or compromises or consents to the entry of any judgment with respect to any Third Party Claim without the prior written consent of the Indemnifying Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss each Indemnified Party shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give deemed to have waived all rights against the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay indemnification under the proposed settlement or compromisethis Article XI.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Hollinger International Inc), Asset Purchase Agreement (Liberty Group Management Services Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify the commence an Action against any Indemnified Party with respect to any matter (a “"Third Party Claim”") that which may give rise to a claim for indemnification against the Indemnifying Party under this Section 11Article IX, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, as soon as practicable.
(b) The Indemnifying Party shall have the nature and basis of the claim and the amount thereof, right to the extent known, and any other relevant documentation in the possession of defend the Indemnified Party against the Third Party Claim with counsel of its choice and reasonably acceptable to the Indemnified Party so long as the Indemnifying Party shall notify the Indemnified Party in writing (within thirty (30) days after its receipt of notice of the Third Party Claim as provided in Section 9.2 or, if the Indemnifying Party has disputed the claim for indemnification, then within ten (10) days of a “Notice final determination that such claim is a valid claim under Section 9.2) that the Indemnified Party will be entitled to indemnification under Section 9.2 hereof from and against any Damages the Indemnified Party may suffer arising out of the Third Party Claim”); provided, however, . It is agreed that failure no delay on the part of the Indemnified Party to notify in notifying any Indemnifying Party shall not of a claim (including any Third Party Claim) will relieve the Indemnifying Party from any obligation hereunder thereby unless (and then solely to the extent) the said Indemnifying Party is thereby materially prejudiced by such failurefailure to give notice.
(c) The So long as the Indemnifying Party mayis conducting the defense of the Third Party Claim in accordance with Section 9.3(b) above, (i) the Indemnified Party may retain separate co-counsel, at its own sole cost and expense, and participate in the defense of any claimthe Third Party Claim, suit, action or proceeding by providing written notice to (ii) the Indemnified Party and delivering 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 Indemnifying Party, which consent shall not be unreasonably withheld or delayed, (iii) the Indemnified Party a written agreement that shall cooperate within reason with the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out Indemnifying Party's defense of such claim, suit, action or proceeding, Third Party Claim and that (iv) the Indemnifying Party shall be liable for not consent to the entire amount entry of any Loss, at judgment or enter into any time during settlement with respect to the course Third Party Claim without the prior written consent of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and which consent shall not be unreasonably withheld or delayed. Notwithstanding any other provision of this Section 9.3, if an Indemnified Party withholds its consent to a settlement or elects to defend any claim, where but for such action the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to could have settled such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated required to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which indemnify the Indemnified Party would only up to a maximum of the bona fide settlement offer for which the Indemnifying Party could have been obligated to pay under the proposed settlement or compromisesettled such claim.
Appears in 2 contracts
Sources: Merger Agreement (L90 Inc), Merger Agreement (Doubleclick Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that may give rise to a claim for indemnification against any other Party (the "Indemnifying Party Party") under this Section 11, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forthwriting, in reasonable detail, the nature and basis of the claim and the amount thereof, provided that failure to so notify shall not affect any rights or remedies hereunder with respect to indemnification for Adverse Consequences except to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failurethereby.
(cii) The Any Indemnifying Party may, at its own expense, participate in will have the right to assume and thereafter conduct the defense of any claimthe Third Party Claim at his or its sole cost and expense with counsel of his or its choice, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall which counsel must be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and provided that it or he thereafter diligently conducts the defense thereof; provided, however, that the Indemnifying Party shall thereafter consult will 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 upon (not to be withheld unreasonably). The Indemnifying Party shall give notice of its or his intention is assuming the defense of a third party claim within thirty (30) days of receipt of notice of such claim from the Indemnified Party’s reasonable request for .
(iii) The Indemnified Party shall be entitled to participate in (but not control) the defense of any such consultation from time to time action, with respect to such claim, suit, action or proceedingits counsel and at its own expense. If the Indemnifying Party assumes does not assume or fails to conduct in a diligent manner the defense of any such defenseclaim or litigation resulting therefrom, the Indemnified Party may defend against such claim or litigation, all at the expense of the Indemnifying Party, subject to the limits on the Indemnifying Party's obligations under this Section 11, who shall promptly reimburse all such reasonable costs and expenses as incurred by the Indemnified Party (including settlement costs). Each party agrees to cooperate fully with the other, such cooperation to include, without limitation, attendance at depositions and the provision of relevant documents as may be reasonably requested by the Indemnifying Party, provided that the Indemnifying Party will hold the Indemnified Party harmless from all of its reasonable expenses, including reasonable attorney's fees, incurred in connection with such cooperation by the Indemnified Party. Notwithstanding the foregoing, in the event that the Indemnified Party reasonably determines in good faith that its interest with respect to such claim cannot appropriately be represented by the Indemnifying Party due to an actual conflict of interest, such Indemnified Party shall have the right (but not the obligation) to participate in assume control of the defense thereof of, and to employ counselcompromise or settle, such claim (exercising reasonable business judgment) at its own expense, separate from the counsel employed by the Indemnifying Party. If, 's expense; provided; however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by any compromise or settlement shall be subject to the Indemnifying Party’s counsel of both 's consent, which consent shall not be unreasonably withheld, and the limits on the Indemnifying Party and Party's obligations under this Section 11.
(iv) In no event will the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice entry of counsel is required, such any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of each of the Indemnifying Parties (not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofwithheld unreasonably).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 2 contracts
Sources: Purchase Agreement (Pantry Inc), Purchase Agreement (Pantry Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies a party to this Agreement (the ‘‘Indemnified Party Party’’) with respect to any matter which may give rise to a claim (other than a “Third Tax Claim) for indemnification against another party to this Agreement (the ‘‘Indemnifying Party’’) under this Article VII, then the Indemnified Party Claim”shall use reasonable efforts to notify the Indemnifying Party thereof promptly and in any event within ten days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is actually prejudiced thereby.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party’s rights to assume the defense of such matter pursuant to paragraph (c) below, defend against the matter in any manner it deems appropriate.
(c) The Indemnifying Party may at any point in time choose to assume the defense of all of such matter, in which event:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party,
(ii) the Indemnified Party may retain separate counsel at its sole cost and expense (except 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, or (y) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party), and
(iii) the Indemnifying Party shall reimburse the Indemnified Party for the reasonable costs of defense or investigation for the period prior to the assumption of the defense.
(d) Assumption of the defense of any matter by the Indemnifying Party shall without further action constitute an irrevocable waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this Article VII.
(e) The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification against without the written consent of the Indemnifying Party under this Section 11Party, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)which consent may not be unreasonably withheld or delayed; provided, however, that failure on if the part Indemnifying Party has failed to provide indemnification required to be provided pursuant to this Article VII for fifteen days after a request therefor, then the Indemnified Party may take any such action without the consent of the Indemnifying Party.
(f) The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the written consent of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent withheld or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofdelayed).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Handheld Entertainment, Inc.), Asset Purchase Agreement (Handheld Entertainment, Inc.)
Matters Involving Third Parties. (a) For purposes of Except with respect to Taxes, which are covered by Section 4.11, each Person entitled to indemnification under this Section 11.3, a party against which Article VI (the “Indemnified Person”) shall give notice to the Person required to provide indemnification may be sought is referred to as hereunder (the “Indemnifying Party” Person”) promptly after such Indemnified Person receives written notice of any claim, action, suit, proceeding or demand asserted by any Person who is not a party (or a successor to a party) to this Agreement (a “Third-Party Claim”), setting forth in reasonable detail the facts and circumstances pertaining thereto and the party which may be entitled basis for the Indemnified Person’s right to indemnification is referred indemnification; provided that the failure by an Indemnified Person to as so notify the “Indemnifying Person shall not relieve any Indemnifying Person of its obligations under this Article VI, except to the extent that such failure prejudices such Indemnifying Person. Thereafter, in the event that the Indemnifying Person assumes the defense of such Third-Party Claim pursuant to Section 6.04(b), the Indemnified PartyPerson shall deliver to the Indemnifying Person copies of all notices and documents (including court papers) received by the Indemnified Person relating to the Third-Party Claim.”
(b) If any third party shall notify the Indemnified Party Except with respect to Taxes, which are covered by Section 4.11, the Indemnifying Person will have the right to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice, at the Indemnifying Person’s sole cost and expense (which assumption must be made by the Indemnifying Person, by notice to the Indemnified Person hereto in writing, within thirty (30) days after having been notified by the Indemnified Person of the existence of such Third-Party Claims); provided, however, that the Indemnifying Person will not consent to the entry of any matter judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Person (not to be unreasonably withheld, conditioned or delayed), unless the judgment or proposed settlement (1) involves only the payment of money damages against which the Indemnified Person is indemnified by the Indemnifying Person, covers the full amount of the liability in such Third-Party Claim and releases the Indemnified Person and its Affiliates from all Liability or obligation in connection with such Third-Party Claim, (2) does not impose an injunction or other non-monetary relief upon the Indemnified Person and (3) does not involve a finding or admission of any violation of Law or other wrongdoing by the Indemnified Person. Counsel selected by the Indemnifying Person to defend any such Third-Party Claim shall be a recognized law firm with the experience and resources to defend the Indemnified Person against any such Third-Party Claim in any such proceeding (and shall be consented to by the Indemnified Person, such consent not to be unreasonably withheld). If the Indemnifying Person elects to assume the defense of a Third-Party Claim, (A) the Indemnified Person will cooperate in all reasonable respects with the Indemnifying Person and its attorneys in such defense and (B) the Indemnifying Person will not be liable to the Indemnified Person for legal expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. In any such action or proceeding, the Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless (i) the Indemnifying Person and the Indemnified Person mutually agree to the retention of such counsel, or (ii) the Indemnifying Person and the Indemnified Person have actual or potential differing defenses or conflicts of interests between them that make joint representation inappropriate, then in all such cases of clauses (i) and (ii), the Indemnifying Person shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Person. Provided that an Indemnified Person has given the Indemnifying Person notice of a Third-Party Claim as required hereunder, unless an Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnified Person may defend against the Third-Party Claim in any manner it may reasonably deem appropriate, and the Indemnifying Person shall be bound by any final determination with respect to such Third-Party Claim prior to such assumption; provided, however, that the Indemnified Person may not agree to any settlement without the consent of the Indemnifying Person, which consent will not be unreasonably withheld, conditioned or delayed. Each party shall reasonably cooperate with the other parties by providing records and information on a timely basis that are reasonably relevant to any Third-Party Claim, and shall in good faith regularly consult with counsel for the other parties and include such counsel in relevant conferences and proceedings to the extent requested by such counsel. Within ten (10) Business Days of determination of the amount of a Third-Party Claim becoming non-appealable (whether as a result of procedural exhaustion or lapse of time), the Indemnifying Person shall pay to the Indemnified Person an amount equal to the aggregate Losses relating to such Third-Party Claim by wire transfer of immediately available funds to the bank account or accounts designated in writing by the indemnified party not less than one (1) Business Day prior to such payment.
(c) Notwithstanding anything to the contrary contained in this Article VI, the parties shall cooperate with each other to obtain the benefits of any insurance coverage for Third-Party Claims that may be in effect at the time a Third-Party Claim is asserted, and, if any insurance carrier for Parent, any Affiliate of Seller, Purchaser or the Bank is obligated or agrees to defend any Third-Party Claim, such defense shall be tendered to such insurance carrier and the rights of the parties among themselves regarding the assumption and control of such defense shall be subject to the reasonable requirements of such insurance carrier. Nothing contained herein shall obligate any party to obtain or continue after the Closing any insurance coverage for any period.
(d) The amount of any Losses of any Indemnified Person under this Article VI and Section 4.11 shall be reduced by the amount, if any, (1) received by the Indemnified Person from any third Person (including, without limitation, any insurance company or other insurance provider (such amount being referred to herein as a “Third Third-Party ClaimReimbursement”)), in respect of the Losses suffered thereby and (2) that may give rise to of all net Tax benefits actually realized by the Indemnified Person through a claim reduction in Taxes otherwise due as a result of such Losses incurred or suffered by the Indemnified Person. If, after receipt by an Indemnified Person of an indemnification payment hereunder, such Person receives a Third-Party Reimbursement in respect of the same Losses (whether in whole or in part) for which indemnification against was made and such Third-Party Reimbursement was not taken into account in assessing the Indemnifying Party under this Section 11amount of indemnification, then the Indemnified Party Person shall promptly notify each turn over all or the relevant portion of such Third-Party Reimbursement to the Indemnifying Party thereof in writing setting forth, in reasonable detail, Person up to the nature and basis amount of the claim and the amount thereofindemnification paid pursuant hereto.
(e) No Indemnifying Person shall have any liability under this Article VI or Section 4.11 for indirect, to the extent knownspeculative, and any other relevant documentation in the possession of the Indemnified Party special, incidental, consequential, punitive or similar damages, including lost profits, lost opportunity costs or lost prospective economic advantage (a collectively, “Notice of ClaimConsequential Damages”); provided, however, that failure on the part of this sentence shall not apply to any Losses incurred by an Indemnified Person in a Third-Party Claim that includes claims against the Indemnified Party Person for Consequential Damages. Any Indemnified Person that becomes aware of a Loss for which it seeks indemnification under this Article VI shall be required to notify use commercially reasonable efforts to mitigate the Loss, including taking any actions reasonably requested by the Indemnifying Party Person, and an Indemnifying Person shall not relieve the Indemnifying Party from be liable for any obligation hereunder unless (and then solely Loss to the extent) the Indemnifying Party extent that it is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice attributable to the Indemnified Party Person’s failure to mitigate. Parent and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party its Affiliates shall have the right (no liability for any Loss which would not have arisen but not the obligation) to participate for any change in the defense thereof and to employ counselaccounting policies, at practices or procedures adopted by Purchaser or its own expense, separate from Affiliates or for any other act or omission by Purchaser or its Affiliates (including the counsel employed by Bank) after the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofClosing Date.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (PNC Financial Services Group Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the “Indemnified Party Party”) with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the other Party (the “Indemnifying Party Party”) under this Section 118, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in writing; which notice shall provide reasonable detail, the nature detail and basis of specificity as to the claim or proceeding and the amount thereof, to the extent known, and any other relevant documentation of damages sought in the possession of the Indemnified Party (a “Notice of Claim”)such claim or proceeding; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby materially prejudiced by such failureprejudiced.
(cii) The Indemnifying If a Third Party mayClaim is made against an Indemnified Party, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for entitled to participate in the entire amount of any Lossdefense thereof and, at any time during the course of any such claimif it so chooses, suit, action or proceeding, to assume the defense thereof, provided that thereof with counsel selected by the Indemnifying Party’s counsel is reasonably satisfactory . Should the Indemnifying Party so elect to assume the Indemnified Partydefense of a Third Party Claim, and the Indemnifying Party shall thereafter consult with not be liable to the Indemnified Party upon for any legal expenses subsequently incurred by the Indemnified Party’s reasonable request for such consultation from time to time Party in connection with respect to such claim, suit, action or proceedingthe defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, it being understood that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay control such defense. The Indemnifying Party shall be liable for the reasonable fees and disbursements expenses of one such separate counselcounsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). Whether or not If the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceedinga Third Party Claim, all of the Parties hereto indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(diii) Any settlement Notwithstanding clause (ii) above, (x) the Indemnified Party may, by prior written notice to the Indemnifying Party, assume the defense of any Third Party Claim if the Indemnified Party shall have been advised by counsel that there are one or compromise made more legal defenses available to the Indemnified Party which are different from or caused in addition to those available to the Indemnifying Party, and, in the reasonable opinion of the Indemnified Party and its counsel, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be made in conflict with those of the Indemnifying Party, or (y) if a Third Party claim seeks injunctive or equitable relief in addition to monetary damages for which it would be entitled to indemnification under this Agreement the Indemnified Party may, by prior written notice to the Indemnifying Party, assume the right to defend the injunctive or equitable relief claim (but not the monetary damages claims); provided, however, if the Indemnified Party assumes defense of such injunctive or equitable relief claim, the Indemnifying Party, subject to the provisions of this Section 8, shall be responsible for the reasonable fees and expenses of counsel employed by the Indemnified Party in defending, compromising or settling such claim; provided that the Indemnifying Party, as the case may be, of ’s liability with respect to any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated subject to assume Section 8(d)(iv) below. In the defense event of a Third Party injunctive or equitable relief claim that would fall under both subsections (x) and full and complete liability and responsibility for such claim(y) of this Section 8(d)(iii), suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisesubsection (y) shall control.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Roxio Inc), Asset Purchase Agreement (Sonic Solutions/Ca/)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies a Party entitled to indemnification under Section 10.1 or Section 10.2 (the “Indemnified Party Party”) with respect to any matter (a “Third Party Claim”) that may give rise to a claim for indemnification against the other Party (the “Indemnifying Party Party”) under this Section 11ARTICLE X, then the Indemnified Party shall promptly use reasonable efforts to notify each the Indemnifying Party thereof promptly and in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party event within ten (10) days after receiving any written notice from a “Notice of Claim”)third party; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (unless, and then solely to the extent) extent that, the Indemnifying Party is thereby materially actually prejudiced by such failurethereby.
(b) The Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party.
(c) The Indemnifying Indemnified Party may, may retain separate counsel at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party sole cost and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and expense (except that the Indemnifying Party shall be liable responsible for the entire amount reasonable fees and expenses of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s one separate co-counsel is reasonably satisfactory for all Indemnified Parties to the Indemnified Party, and the Indemnifying Party shall thereafter consult with extent the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claimis advised, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at writing by its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present has selected has a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof).
(d) Any settlement or compromise made or caused to be made by The Indemnifying Party shall reimburse the Indemnified Party for the reasonable costs of defense or investigation for the period prior to the Indemnifying Party’s assumption of the defense.
(e) The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter that may give rise to a claim for indemnification without the written consent of the Indemnifying Party, as the case which consent may benot be unreasonably withheld or delayed; provided, of any such claimhowever, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon that if the Indemnifying Party or the Indemnified Partyhas failed to respond to a claim for indemnification required to be provided pursuant to this ARTICLE X for fifteen (15) days after a request therefor, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on then the Indemnified Party as a result may take any such action without the consent of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Party.
(f) The Indemnifying Party shall be obligated not consent to assume the defense entry of and full and complete liability and responsibility a judgment with respect to any matter that may give rise to a claim for such claim, suit, action indemnification or proceeding and enter into any and all Losses settlement that does not include a provision whereby the plaintiff or claimant in connection therewith in excess of the amount of unindemnifiable Losses which matter releases the Indemnified Party would have been obligated from all Liability with respect thereto for the sole remedy of payment without the written consent of the Indemnified Party (not to pay under the proposed settlement be unreasonably withheld or compromisedelayed).
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies the Indemnified Party Purchaser (the "INDEMNIFIED PARTY") with respect to any matter which may give rise to a claim (other than a “Third Tax Claim) for indemnification against the Seller (the "INDEMNIFYING PARTY") under Section 10.2, then the Indemnified Party Claim”shall use reasonable efforts to notify the Indemnifying Party thereof promptly and in any event within ten days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is actually prejudiced thereby.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense of such matter pursuant to paragraph (c) below, defend against the matter in any manner it deems appropriate.
(c) The Indemnifying Party may at any point in time choose to assume the defense of all of such matter, in which event:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party,
(ii) the Indemnified Party may retain separate counsel at its sole cost and expense (except 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, or (y) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party), and
(iii) the Indemnifying Party shall reimburse the Indemnified Party for the reasonable costs of defense or investigation for the period prior to the assumption of the defense.
(d) Assumption of the defense of any matter by the Indemnifying Party shall without further action constitute an irrevocable waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this Article X.
(e) The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification against without the written consent of the Indemnifying Party under this Section 11Party, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)which consent may not be unreasonably withheld or delayed; provided, however, that failure on if the part Indemnifying Party has failed to provide indemnification required to be provided pursuant to this Article X for fifteen days after a request therefor, then the Indemnified Party may take any such action without the consent of the Indemnifying Party.
(f) The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the written consent of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent withheld or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofdelayed).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Sources: Stock Purchase Agreement (International Microcomputer Software Inc /Ca/)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies any party entitled to indemnity hereunder (the "Indemnified Party Party") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against a party hereto (the "Indemnifying Party Party") under this Section 11Article VII (a "Third Party Claim"), then the Indemnified Party shall promptly use reasonable efforts to notify each the Indemnifying Party thereof promptly and in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (event within ten days after receiving any written notice from a “Notice of Claim”)third party; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely except to the extent) extent that the Indemnifying Party is thereby materially prejudiced thereby; provided further, however, in the case of Indemnified Parties pursuant to Section 7.2, such notice obligation shall be satisfied by notice to the Stockholder Representative.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense of such failurematter pursuant to paragraph (c) below, defend against the matter in any manner it reasonably deems appropriate.
(c) The Indemnifying Party may, may at its own expense, participate any point in time choose to assume the defense of any claimall of such matter by acknowledging in writing that such matter is the obligation of the Indemnifying Party under Article VII, suit, action or proceeding by providing written notice in which event:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party and delivering to Party,
(ii) the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, may retain separate counsel at its sole costs and expense (except that the Indemnifying Party shall be liable responsible for the entire amount fees and expenses of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s one separate counsel is reasonably satisfactory for all Indemnified Parties to the extent the Indemnified PartyParty is advised, and in writing by its counsel, that either (x) the counsel the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present has selected has a conflict of interest, then such or (y) there are legal defenses available to the Indemnified Party may employ separate counsel (party that are different from or additional to those available to the Indemnifying Party’s consent to the choice of counsel is required), such consent not to be unreasonably withheldand
(iii) to represent or defend it in any such claim, action, suit or proceeding and the The Indemnifying Party shall pay reimburse the Indemnified Party for the reasonable fees and disbursements costs of one such separate counsel. Whether defense or not investigation for the Indemnifying Party chooses period prior to defend or prosecute any such claim, suit, action or proceeding, all the assumption of the Parties hereto shall cooperate in the defense or prosecution thereofdefense.
(d) Any settlement or compromise made or caused to be made by the The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the written consent of the Indemnifying Party, as the case which consent may benot be unreasonably withheld or delayed; provided, of any such claimhowever, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon that if the Indemnifying Party or has provided notice that the Indemnified Partymatter is not a proper matter for indemnification hereunder, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on then the Indemnified Party as a result may take any such action without the consent of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice Party.
(e) The Indemnifying Party, without the written consent of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated (not to pay under be unreasonably withheld or delayed), shall not consent to the proposed entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or compromiseclaimant in the matter releases the Indemnified Party from all liability with respect thereto.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies the Purchaser (the "Indemnified Party Party") with respect to any matter which may give rise to a claim (other than a “Third Tax Claim) for indemnification against the Seller (the "Indemnifying Party") under this Article X, then the Indemnified Party Claim”shall use reasonable efforts to notify the Indemnifying Party thereof promptly and in any event within ten days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is actually prejudiced thereby. Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense of such matter pursuant to paragraph (c) below, defend against the matter in any manner it deems appropriate. The Indemnifying Party may at any point in time choose to assume the defense of all of such matter, in which event: the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party, the Indemnified Party may retain separate counsel at its sole cost and expense (except 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, or (y) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party), and the Indemnifying Party shall reimburse the Indemnified Party for the reasonable costs of defense or investigation for the period prior to the assumption of the defense. Assumption of the defense of any matter by the Indemnifying Party shall without further action constitute an irrevocable waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this Article X. The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification against without the written consent of the Indemnifying Party under this Section 11Party, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)which consent may not be unreasonably withheld or delayed; provided, however, that failure on if the part Indemnifying Party has failed to provide indemnification required to be provided pursuant to this Article X for fifteen days after a request therefor, then the Indemnified Party may take any such action without the consent of the Indemnifying Party. The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the written consent of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent withheld or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofdelayed).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Sources: Stock Purchase Agreement (International Microcomputer Software Inc /Ca/)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Person entitled to indemnification hereunder (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that may is reasonably expected to give rise to a claim for indemnification against the General Partner or Subscriber, as applicable (the "Indemnifying Party Party") under this Section 11Thirteenth, then the Indemnified Party shall promptly (and in any event within ten Business Days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party writing. Failure to notify any the Indemnifying Party shall not relieve the Indemnifying Party from of any obligation hereunder unless (and then solely liability that it may have to the extent) Indemnified Party, except to the Indemnifying Party extent the defense of such claim is thereby materially prejudiced by the Indemnified Party's failure to give such failurenotice.
(cii) The Indemnifying Party may, at its own expense, participate in shall have the right to assume and thereafter conduct the defense of any claim, suit, action or proceeding by providing written notice the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party and delivering to the Indemnified Indemnifying Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out shall have full control of such claimdefense and proceedings, suitincluding any compromise or settlement thereof; provided, action or proceedinghowever, and that the Indemnifying Party shall be liable for not consent to the entire amount entry of any Lossjudgment or enter into any settlement with respect to the Third Party Claim which provides for or results in any payment by or Liability of the Indemnified Party of or for any damages or other amount, at any time during the course encumbrance on any property of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and any finding of responsibility or liability on the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice part of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or any sanction or injunction of, restriction upon the Indemnifying Party, as the case may be, conduct of any such claimbusiness by, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding other equitable relief upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.the
Appears in 1 contract
Sources: Subscription Agreement (Alliance Resource Partners Lp)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party (including, without limitation, any Taxing authority) shall notify make or assert a Claim against any Party (the "Indemnified Party Party") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party Party") under this Section 11Article 7, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)promptly; provided, however, that failure no delay on the part of the Indemnified Party to notify in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any liability or obligation hereunder under this Agreement unless (and then solely to the extent) the Indemnifying Party is thereby materially damaged or prejudiced by thereby. In the case of any such failure.
(c) The Claim pursuant to which only the recovery of a sum of money is being sought and the Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to (i) enters into an agreement with the Indemnified Party (in form and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible (with no reservation of any rights other than the right to be subrogated to the rights of the Indemnified Party) for all Losses relating to such Claim and unconditionally guarantees the payment and performance of any Loss which may arise with respect to such Claim or the facts giving rise to such Claim for indemnification, and (ii) furnishes the Indemnified Party with evidence that the Indemnifying Party, in the Indemnified Party's reasonable judgment, is and will be able to satisfy any such Claim, the Indemnifying Party may, by giving written notice to the Indemnified Party, assume the defense thereof. In such case, (A) the Indemnifying Party will defend the Indemnified Party against such matter with counsel of its choice satisfactory to the Indemnified Party and (B) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of any separate counsel to the Indemnified Party incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense). In the event that the Indemnifying Party is precluded from assuming control of the defense of a Claim pursuant to the terms of this Section 7.5, the Indemnifying Party may retain separate co-counsel at its sole cost and expense to participate in such defense and, in any event the Indemnified Party shall (i) provide the Indemnifying Party with all material information requested by such party relating to the defense of such Claim, (ii) confer with the Indemnifying Party as to the most cost-effective manner in which to defend such Claim and (iii) use its reasonable efforts to minimize the cost of defending such Claim. The Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to such matter without the written consent of the Indemnifying Party (not to be withheld unreasonably), and the Indemnifying Party shall thereafter consult with will not consent to the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time entry of any judgment or enter into any settlement with respect to such claim, suit, action or proceeding. If matter without the Indemnifying Party assumes such defense, written consent of the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofwithheld unreasonably).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party (including, without limitation, any Taxing authority) shall notify make or assert a Claim against any Party (the " Indemnified Party ") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the " Indemnifying Party ") under this Section 11Article 7, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)promptly; provided, however, that failure no delay on the part of the Indemnified Party to notify in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any liability or obligation hereunder under this Agreement unless (and then solely to the extent) the Indemnifying Party is thereby materially damaged or prejudiced by thereby. In the case of any such failure.
(c) The Claim pursuant to which only the recovery of a sum of money is being sought and the Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to (i) enters into an agreement with the Indemnified Party (in form and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible (with no reservation of any rights other than the right to be subrogated to the rights of the Indemnified Party) for all Losses relating to such Claim and unconditionally guarantees the payment and performance of any Loss which may arise with respect to such Claim or the facts giving rise to such Claim for indemnification, and (ii) furnishes the Indemnified Party with evidence that the Indemnifying Party, in the Indemnified Party's reasonable judgment, is and will be able to satisfy any such Claim, the Indemnifying Party may, by giving written notice to the Indemnified Party, assume the defense thereof. In such case, (A) the Indemnifying Party will defend the Indemnified Party against such matter with counsel of its choice satisfactory to the Indemnified Party and (B) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of any separate counsel to the Indemnified Party incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense). In the event that the Indemnifying Party is precluded from assuming control of the defense of a Claim pursuant to the terms of this Section 7.5, the Indemnifying Party may retain separate co-counsel at its sole cost and expense to participate in such defense and, in any event the Indemnified Party shall (i) provide the Indemnifying Party with all material information requested by such party relating to the defense of such Claim, (ii) confer with the Indemnifying Party as to the most cost-effective manner in which to defend such Claim and (iii) use its reasonable efforts to minimize the cost of defending such Claim. The Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to such matter without the written consent of the Indemnifying Party (not to be withheld unreasonably), and the Indemnifying Party shall thereafter consult with will not consent to the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time entry of any judgment or enter into any settlement with respect to such claim, suit, action or proceeding. If matter without the Indemnifying Party assumes such defense, written consent of the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofwithheld unreasonably).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify the notifies any Indemnified Party with respect to any matter (a “Third Third-Party Claim”) that may give gives rise to a claim for indemnification against the an Indemnifying Party under this Section 117, then the Indemnified Party shall promptly promptly, in a reasonable period of time after the claim is actually known by the Indemnified Party, notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of ClaimNotice”); provided, however, failure to give such Notice shall not limit the right of an Indemnified Party to recover hereunder from any Indemnifying Party except to the extent that failure such Indemnifying Party is actually prejudiced as a result of such failure. 48 (b) Without limiting any rights of any insurers, as between the Indemnified Party and the Indemnifying Party, in the case of any Third-Party Claims for which indemnification is sought, provided that the Indemnifying Party has within 15 days after receipt of the Notice from the Indemnified Party unconditionally acknowledged to the Indemnified Party in writing its obligation to indemnify the Indemnified Party with respect to such Third-Party Claim and to discharge in full any cost or expense arising out of such investigation, contest or settlement and using counsel reasonably satisfactory to the Indemnified Party, the Indemnifying Party shall be entitled at its cost and expense to (i) conduct and control any proceedings or negotiations with such third party, (ii) perform and control or direct the performance of any required activities, (iii) take all other steps to settle or defend any such claim (provided that the Indemnifying Party (y) shall not settle any such claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless the settlement includes a complete release of the Indemnified Party with respect to the claim and no additional obligation, restriction or Damages shall be imposed on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder and (z) shall provide the Indemnified Party the opportunity to consult with the Indemnifying Party and advance written notice of any settlement of any claim with respect to any matter that would reasonably set a precedent that would materially interfere with, or have an material adverse impact on the business or financial condition of the Indemnified Party)), (iv) employ counsel to contest any such claim or liability, and (v) direct and control relevant insurance related matters; provided, the Indemnifying Party shall not have the right to assume control of such defense to the extent the claim for which the Indemnifying Party seeks to assume control: (A) seeks non‑monetary relief (except where non‑monetary relief is merely incidental to a primary claim or claims for monetary damages), (B) involves criminal allegations, or (C) that, if unsuccessful, would (i) reasonably be expected to exceed the amount of indemnification available pursuant to this Agreement, or (ii) imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to notify any indemnification hereunder. The Indemnifying Party shall, within 30 days after delivery of the Notice to Indemnifying Party (or sooner, if the nature of the Third-Party Claim so requires), notify the Indemnified Party of its intention as to the conduct and control of the defense of such claim; provided that the Indemnified Party and its counsel shall not relieve cooperate with the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) its counsel, including, without, limitation, preserving and providing all documents, records, and other materials that may be sought in discovery in such litigation, granting the Indemnifying Party is thereby materially prejudiced by and its counsel access to all such failure.
(c) The documents and records as may be reasonable necessary and appropriate for the purpose of such pursuit, contest, or defense, and making available to Indemnifying Party mayand its counsel personnel and employees (and to the extent possible, former personnel and employees) to review such documents and records, assist counsel in preparing and responding to discovery, and preparing for and testifying at deposition or trial, as may be reasonably requested and appropriate for the purpose of such pursuit, and the Sellers shall bear all of the out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Buyer and its Representatives in complying with such obligations. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Party Claim with its own counsel at its own expense, participate unless separate representation is necessary to avoid an unwaivable conflict of interest, in which case such representation shall be selected by but at the defense expense of the Indemnifying Party. Until the Indemnified Party has received notice of the Indemnifying Party’s election whether to defend any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering shall take reasonable steps to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of defend (but may not settle) such claim, suit, action or proceeding, and that . If the Indemnifying Party shall be liable for decline to assume the entire amount of any Loss, at any time during the course defense of any such claim, suit, action or proceeding, assume the defense thereof, Indemnified Party may defend against such claim (provided that the Indemnified Party may not settle such claim without the consent of the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, which shall not be unreasonably withheld, conditioned, or delayed) and the Indemnifying Party shall thereafter consult with will remain responsible for any Damages the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party suffer as a result of such settlement without its prior written consentThird-Party Claim to the extent subject to indemnification under this Section 7. The Indemnified Party will give Following the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any Party’s notification that it has elected to defend a claim, suit, action or proceeding it is defending, during which time the at Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejectionParty’s request, the Indemnifying Party Parties shall be obligated to assume enter into a joint defense and common interest agreement regarding the defense and resolution of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.. 49
Appears in 1 contract
Sources: Asset Purchase Agreement
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies any party hereto (the Indemnified Party "INDEMNIFIED PARTY") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the Indemnifying Party other party hereto (the "INDEMNIFYING PARTY") under this Section 11ARTICLE XIII, then the Indemnified Party shall promptly use reasonable efforts to notify each the Indemnifying Party thereof promptly and in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (event within ten days after receiving any written notice from a “Notice of Claim”)third party; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (unless, and then solely to the extent) extent that, the Indemnifying Party is thereby materially actually prejudiced by thereby.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense of such failurematter pursuant to paragraph (c) below, defend against the matter in any manner it deems appropriate.
(c) The Indemnifying Party may, may at its own expense, participate any point in time choose to assume the defense of any claimall of such matter, suit, action or proceeding by providing written notice in which event:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party and delivering to Party,
(ii) the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, may retain separate counsel at its sole cost and expense (except that the Indemnifying Party shall be liable responsible for the entire amount fees and expenses of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s one separate co-counsel is reasonably satisfactory for all Indemnified Parties to the extent the Indemnified PartyParty is advised, and in writing by its counsel, that either (x) the counsel the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present has selected has a conflict of interest, then such or (y) there are legal defenses available to the Indemnified Party may employ separate counsel (Indemnifying Party’s consent that are different from or additional to those available to the choice Indemnifying Party (but only to the extent of counsel is requiredsuch additional defenses)), such consent not to be unreasonably withheldand
(iii) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay reimburse the Indemnified Party for the reasonable fees and disbursements costs of one such separate counsel. Whether defense or not investigation for the Indemnifying Party chooses period prior to defend or prosecute any such claim, suit, action or proceeding, all the assumption of the Parties hereto shall cooperate in the defense or prosecution thereofdefense.
(d) Any settlement or compromise made or caused to be made Assumption of the defense of any matter by the Indemnifying Party shall without further action constitute an irrevocable waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this ARTICLE XIII.
(e) The Indemnified Party shall not consent to the entry of a Judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the prior written consent of the Indemnifying Party, as the case which consent may be, of any such claim, suit, action not be unreasonably withheld or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the delayed. The Indemnifying Party shall not consent to the entry of a Judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the Indemnified Party, as the case may be, plaintiff or claimant in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on matter releases the Indemnified Party as a result of such settlement from all liability with respect thereto, without its the prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice consent of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated (not to pay under the proposed settlement be unreasonably withheld or compromisedelayed).
Appears in 1 contract
Sources: Asset Purchase Agreement (JPS Automotive Products Corp)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party Party") under this Section 118, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)promptly; provided, however, that failure no delay on the part of the Indemnified Party to notify in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby damaged or materially prejudiced by from adequately defending such failure.
(c) The claim. In the event any Indemnifying Party may, at its own expense, participate in notifies the Indemnified Party within 30 days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, (A) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of any claim, suit, action or proceeding by providing written notice its choice reasonably satisfactory to the Indemnified Party and delivering to Party, (B) the Indemnified Party a written agreement may retain separate co-counsel as its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party is entitled reasonably and in good faith concludes that the counsel the Indemnifying Party has selected has a conflict of interest), (C) the Indemnified Party will not consent to indemnification pursuant the entry of any judgment or enter into any settlement with respect to Section 11 for all Losses arising out the matter without the written consent of such claim, suit, action or proceedingthe Indemnifying Party (not to be withheld unreasonably), and (D) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the written consent of the Indemnified Party (not to be withheld unreasonably). In the event no Indemnifying Party notifies the Indemnified Party within 30 days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, however, the Indemnified Party may defend against, or enter into any settlement with respect to, the matter in any manner it reasonably may deem appropriate. At any time after commencement of any such action, any Indemnifying Party may request an Indemnified Party to accept a bona fide offer from the other Parties to the action for a monetary settlement payable solely by such Indemnifying Party (which does not burden or restrict the Indemnified Party nor otherwise prejudice him or it) whereupon such action shall be taken unless the Indemnified Party determines that the dispute should be continued, the Indemnifying Party shall be liable for indemnity hereunder only to the entire extent of the lesser of (i) the amount of any Loss, at any time during the course of any such claim, suit, action settlement offer or proceeding, assume (ii) the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with amount for which the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time may be liable with respect to such claimaction. In addition, suitthe Party controlling the defense of any Third Party Claim shall deliver, action or proceeding. If cause to be delivered, to the other Party copies of all correspondence, pleadings, motions, briefs, appeals or other written statements relating to or submitted in connection with the defense of the Third Party Claim, and timely notices of, and the right to participate in (as an observer) any hearing or other court proceeding relating to the Third Party Claim.
(ii) Unless and until an Indemnifying Party assumes such defensethe defense of the Third Party Claim as provided in Section 8(d)(i) above, however, the Indemnified Party shall have may defend against the right Third Party Claim in any manner he or it reasonably may deem appropriate.
(but not the obligationiii) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and In no event will the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice entry of counsel is requiredany judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of each of the Indemnifying Parties, such consent which shall not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Sources: Merger Agreement (Xpedior Inc)
Matters Involving Third Parties. If any third party notifies any Party (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify the Indemnified Party with respect to any matter (a “Third Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party Party”) under this Section 116, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)writing; provided, however, that failure no delay on the part of the Indemnified Party to notify in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) prejudiced. The Indemnifying Party mayshall not have the right to conduct the defense or compromise and settle any such Third-Party Claim; however, at its own expense, any Indemnifying Party shall be entitled to participate in the defense of any claimsuch Third-Party Claim at such Indemnifying Party’s expense, suit, action or proceeding and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by providing written notice appointing reputable counsel reasonably acceptable to the Indemnified Party and delivering to be the lead counsel in connection with such defense; provided that, prior to the Indemnifying Party assuming control of such defense it shall first verify to the Indemnified Party a written agreement in writing that such Indemnifying Party shall be fully responsible (with no reservation of any rights) for all Liabilities relating to such claim for indemnification and that such Indemnifying Party shall provide full indemnification to the Indemnified Party is with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder; and provided further, that:
(i) the Indemnified Party shall be entitled to indemnification pursuant to Section 11 for all Losses arising out participate in the defense of such claimclaim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense which, suitnotwithstanding the foregoing, action or proceedingshall be borne by the Indemnifying Party, and except that the Indemnifying Party shall be liable for pay all of the entire amount fees and expenses of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s separate counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with if the Indemnified Party upon the Indemnified Party’s has been advised by counsel that a reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice likelihood exists of counsel, that the representation by the Indemnifying Party’s counsel a conflict of both interest between the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel Party);
(Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheldii) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the reasonable fees and disbursements expenses of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses arises in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement with any criminal or compromise.quasi criminal proceeding, action, indictment, allegation or investigation;
Appears in 1 contract
Sources: Securities Purchase Agreement
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the "Indemnified Party Party") with respect to any matter (a “Third "Third-Party Claim”") that may give rise to a claim for indemnification against any other Party (the "Indemnifying Party Party") under this Section 114, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forthwriting. Failure to give prompt notice of a Third-Party Claim hereunder shall not affect the Indemnifying Party's obligations, in reasonable detail, the nature and basis of the claim and the amount thereof, except to the extent known, that the Indemnifying Party is materially prejudiced by such failure to give prompt notice.
(ii) The Indemnifying Party shall have the right to assume and any other relevant documentation in thereafter conduct the possession defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party (a “Notice of Claim”)Party; provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, any matter through counsel of its own choosing at its own expense, separate from the counsel employed by the Indemnifying Party. If; provided further, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements expenses of one such separate counsel. Whether or not counsel for the Indemnified Party if (A) the Indemnifying Party chooses has agreed to defend pay such fees and expenses or prosecute (B) the named parties to any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
proceeding (dincluding any impleaded parties) Any settlement or compromise made or caused to be made by include both the Indemnified Party or and the Indemnifying Party, as and such Indemnified Party shall have been advised by counsel that the case may be, representation of both parties would be inappropriate due to actual or potential differing interests between them.
(iii) The Indemnifying Party shall not consent to the entry of any such claim, suit, action judgment or proceeding enter into any settlement with respect to the Third-Party Claim without the prior written consent of the kind referred Indemnified Party (not to in this Section 11.3 shall also be binding withheld or delayed unreasonably) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party.
(iv) Unless and until the Indemnifying Party or assumes the Indemnified Partydefense of the Third-Party Claim as provided in Section 4(d)(ii), as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified may defend against the Third-Party will give the Indemnifying Party at least 30 days’ notice of Claim in any proposed settlement or compromise of any claim, suit, action or proceeding manner it is defending, during which time the Indemnifying Party reasonably may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party deem appropriate.
(v) In no event shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated consent to pay under the proposed entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld or compromisedelayed unreasonably.
Appears in 1 contract
Sources: Purchase and Sale Agreement (First Reserve Gp Ix Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify Fibreboard, on the one hand, or Buyer on the other hand (the notified party is hereinafter referred to as the "Indemnified Party Party") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the other (such other party is hereinafter referred to as the "Indemnifying Party Party") under this Section 1110, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)promptly; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The damaged. Seller hereby agrees that it is defending, and will continue to defend, in accordance with the terms of this Purchase Agreement all litigation and actions pending against Seller or any Acquired Corporation, including, without limitation, the actions described in the Disclosure Schedule. In the event the Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to notifies the Indemnified Party and delivering to within fifteen (15) days after the Indemnified Party a written agreement that has given notice of the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and matter that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume is assuming the defense thereof, provided that (A) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of the Indemnifying Party’s counsel is 's choice reasonably satisfactory to the Indemnified Party, (B) the Indemnified Party may retain separate co-counsel at the Indemnified Party's sole cost and expense (except that the Indemnifying Party shall thereafter consult with will be responsible for the reasonable fees and expenses of the separate co-counsel to the extent the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, concludes reasonably that the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from has an actual conflict of interest with other parties represented by the counsel employed selected by the Indemnifying Party. If, howeveror such counsel otherwise has a conflict in its representation of the Indemnified Party such that representation of the Indemnified Party by such counsel would be inappropriate), and (C) neither the Indemnified Party nor the Indemnifying Party reasonably determines, based upon will consent to the entry of any judgment or enter into any settlement with respect to the matter without the written advice consent of counsel, that the representation by other Party (not to be withheld unreasonably). In the Indemnifying Party’s counsel of both event the Indemnifying Party and does not notify the Indemnified Party would present a conflict within fifteen (15) days after the Indemnified Party has given notice of interestthe matter that the Indemnifying Party is assuming the defense thereof, then such the Indemnified Party may employ separate counsel (Indemnifying Party’s consent to defend against, or enter into any settlement with respect to, the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it matter in any such claim, action, suit or proceeding and manner it reasonably may deem appropriate (with the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and bearing responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromiseAdverse Consequences as set forth herein).
Appears in 1 contract
Sources: Stock Purchase and Indemnification Agreement (Ski Lifts Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies any party hereto (the "Indemnified Party Party") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the other party hereto (the "Indemnifying Party Party") under this Section 119, then the Indemnified Party shall promptly will notify each the Indemnifying Party thereof in writing setting forth, promptly and in reasonable detail, any event within 10 days after receiving any written notice from a third party stating the nature and basis of any claim made by the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)third party; provided, however, provided that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not will relieve the Indemnifying Party from any obligation hereunder unless (unless, and then solely to the extentextent that, the Indemnifying Party is prejudiced thereby. The Indemnified Party shall provide to the Indemnifying Party on request all information and documentation reasonably necessary to support and verify any Losses which the Indemnified Party believes give rise to a claim for indemnification hereunder and shall give the Indemnifying Party reasonable access to all books, records and personnel in the possession or under the control of the Indemnified Party which would have bearing on such claim. In the event the Indemnifying Party notifies the Indemnified Party within 30 days after the date the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense of such matter (i) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to will defend the Indemnified Party and delivering to against the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out matter with counsel of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is its choice reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may retain separate counsel at its sole cost and expense (except that the Indemnifying Party shall thereafter consult with will be responsible for the fees and expenses of such separate co-counsel to the extent the Indemnified Party upon reasonably concludes in good faith that the Indemnified Party has defenses available to it that may conflict with those of the Indemnifying Party’s reasonable request for such consultation from time ), (iii) the Indemnified Party will not consent to time the entry of a judgement or enter into any settlement with respect to such claimthe matter without the written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), suitand (iv) the Indemnifying Party will not consent to the entry of a judgement with respect to the matter or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, action without the written consent of the Indemnified Party (not to be withheld or proceedingdelayed unreasonably). If the Indemnifying Party assumes does not assume the defense of such defensematter, the Indemnified Party shall have may defend against the right matter in any manner it reasonably may deem appropriate, and (but not the obligationi) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict will defend the matter with counsel of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent its choice reasonably satisfactory to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time (ii) the Indemnifying Party may reject such proposed retain separate counsel at its sole cost and expense, and (iii) the Indemnified Party will not consent to the entry of a judgement or enter into any settlement or compromise; provided that from and after such rejection, with respect to the matter without the written consent of the Indemnifying Party (not to be withheld or delayed unreasonably).
(b) The provisions of paragraph (a) of this Section 9.4 shall apply to all claims for indemnification hereunder except indemnification claims which involve Tax matters pertaining to ▇▇▇▇▇▇▇, which claims shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisegoverned by Article 10.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies a party entitled to indemnification under this Article XI (the “Indemnified Party Party”) with respect to any matter which may give rise to a claim (other than a Tax Claim) for indemnification against another party to this Agreement under this Article XI (the “Third Indemnifying Party”), then the Indemnified Party Claim”shall use reasonable efforts to notify the Indemnifying Party thereof promptly and in any event within ten (10) calendar days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is actually prejudiced thereby.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party’s rights to assume the defense of such matter pursuant to paragraph (c) below, defend against the matter in any manner it deems reasonably appropriate.
(c) The Indemnifying Party may at any point in time choose to assume the defense of all of such matter, in which event:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may retain separate counsel at its sole cost and expense (except that the Indemnifying Party shall be responsible for the reasonable 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, or (y) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party); and
(iii) the Indemnifying Party shall reimburse the Indemnified Party for the reasonable costs of defense or investigation for the period prior to the assumption of the defense.
(d) Assumption of the defense of any matter by the Indemnifying Party shall without further action constitute an irrevocable waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this Article XI.
(e) The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification against without the written consent of the Indemnifying Party, which consent may not be unreasonably withheld or delayed.
(f) The Indemnifying Party under this Section 11, then shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forthfrom all liability with respect thereto, in reasonable detail, without the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession written consent of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent withheld or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofdelayed).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify any party hereto (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that which may give rise to a claim for indemnification against the other party hereto (the "Indemnifying Party Party") under this Section 11, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)writing; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby materially prejudiced by such failure.
(c) prejudiced. The Indemnifying Party mayand its legal representative(s) shall have, at its the Indemnifying Party's election, the right to compromise, defend or cure any such Third Party Claim through counsel of the Indemnifying Party's own choosing at the Indemnifying Party's own expense. In the event the Indemnifying Party intends to compromise, participate defend or cure any such Third Party Claim, (a) the Indemnifying Party shall notify the Indemnified Party of such intention within fourteen (14) days after the Indemnifying Party's receipt of a notice from the Indemnified Party of a Third Party Claim and (b) the Indemnified Party shall cooperate in all respects with the Indemnifying Party in the compromise, defense or cure of any claim, suit, action or proceeding by providing written such Third Party Claim. In the event that the Indemnifying Party does not give notice to the Indemnified Party and delivering hereunder of its intention to compromise, defend or cure within such 14-day time period or does not in good faith compromise, defend or cure after such notice is given, thus causing the Indemnified Party a written agreement that to take action on its behalf to defend, compromise, cure or otherwise resolve such Third Party Claim, then, in such event, the action taken by the Indemnified Party is entitled shall be conclusively deemed to indemnification pursuant to Section 11 for have, in all Losses arising out of such claimrespects, suit, action or proceeding, been necessary and that reasonable and the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory estopped from alleging to the Indemnified Party, and contrary. In the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, event the Indemnified Party shall have to take such action on its behalf, the right (but not the obligation) to participate in the defense thereof Indemnified Party may seek and to employ counsel, at its own expense, separate demand from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice payment of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made costs expended by the Indemnified Party with respect to such Third Party Claim (including, without limitation, reasonable attorneys' fees and other costs incurred by the Indemnified Party in defending, settling, compromising or inquiring as to any such Third Party Claim or course of action). In any event, all reasonable attorneys' fees and costs incurred by the Indemnified Party with regard to notifying the Indemnifying Party, as the case may be, Part of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 Third Party Claim shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, included in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisethis indemnity.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Vaughn Communications Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the “Indemnified Party Party”) with respect to any matter (a “Third Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party Party”) under this Section 117, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forthwriting. Failure to give prompt notice of a Third-Party Claim hereunder shall not affect the Indemnifying Party’s obligations, in reasonable detail, the nature and basis of the claim and the amount thereof, except to the extent known, that the Indemnifying Party is materially prejudiced by such failure to give prompt notice.
(ii) The Indemnifying Party shall have the right to assume and any other relevant documentation in thereafter conduct the possession defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party (a “Notice of Claim”)Party; provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, any matter through counsel of its own choosing at its own expense, separate from the counsel employed by the Indemnifying Party. If; provided further, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements expenses of one such separate counsel. Whether or not counsel for the Indemnified Party if (A) the Indemnifying Party chooses has agreed to defend pay such fees and expenses or prosecute (B) the named parties to any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
proceeding (dincluding any impleaded parties) Any settlement or compromise made or caused to be made by include both the Indemnified Party or and the Indemnifying Party, as and such Indemnified Party shall have been advised by counsel that the case may be, representation of both parties would be inappropriate due to actual or potential differing interests between them.
(iii) The Indemnifying Party shall not consent to the entry of any such claim, suit, action judgment or proceeding enter into any settlement with respect to the Third-Party Claim without the prior written consent of the kind referred Indemnified Party (not to in this Section 11.3 shall also be binding withheld or delayed unreasonably) unless the judgment or proposed settlement involves only the payment of money damages (accompanied by an acknowledgment that such amounts will be paid by the Indemnifying Party) and does not impose an injunction or other equitable relief upon the Indemnified Party and does not require any admission of wrongdoing or liability by the Indemnified Party.
(iv) Unless and until the Indemnifying Party or assumes the Indemnified Partydefense of the Third-Party Claim as provided in Section 7(d)(ii), as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified may defend against the Third-Party will give the Indemnifying Party at least 30 days’ notice of Claim in any proposed settlement or compromise of any claim, suit, action or proceeding manner it is defending, during which time the Indemnifying Party reasonably may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party deem appropriate.
(v) In no event shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated consent to pay under the proposed entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld or compromisedelayed unreasonably.
Appears in 1 contract
Matters Involving Third Parties. Promptly after receipt by a Party seeking indemnification hereunder (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “an "Indemnified Party.”
(b") If of notice of any claim or the commencement by any third party shall notify the Indemnified Party with respect to any matter or dissenting Company Holder (a “Third Party Claim”) of any claim or proceeding that may give rise might result in another Party hereto (the "Indemnifying Party") becoming obligated to a claim for indemnification against indemnify or make any other payment to the Indemnifying Indemnified Party under this Section 11Agreement, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof forthwith in writing setting forth, in reasonable detail, the nature and basis of the claim and commencement thereof or of the amount thereof, to the extent knownclaim, and any other relevant documentation in shall furnish the possession of the Indemnified Indemnifying Party (a “Notice of Claim”); provided, however, that with all information and documents relating thereto promptly after its receipt thereof. The failure on the part of the Indemnified Party to so notify any the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (liability that it may have on account of this indemnification or otherwise, except and then solely only to the extent) extent that the Indemnifying Party is thereby materially prejudiced by such failure.
(c) thereby. The Indemnifying Party mayshall have the right, at its own expensewithin thirty (30) days after being so notified, participate in to assume and control the defense of any claim, suit, action such claim or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s with counsel is reasonably satisfactory to the Indemnified Party in good faith and at the Indemnifying Party, 's own expense; provided that unless and until the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for assume such consultation from time defense pursuant to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defensethis sentence, the Indemnified Party shall have the right to conduct and control the defense of such claim or proceeding (but not including the obligationsettlement thereof) without the Indemnifying Party's consent and shall be entitled to payment from the Indemnifying Party of all reasonable costs of such defense (including attorney's fees and expenses and costs of appeals and experts). In any such claim or proceeding the defense of which the Indemnifying Party shall have so assumed, the Indemnified Party shall have the right to participate in the defense thereof therein and to employ counsel, retain its own counsel at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, unless (i) the Indemnifying Party reasonably determines, based upon written advice and the Indemnified Party shall have mutually agreed to the retention of counsel, that the representation by same counsel or (ii) the Indemnifying Party’s counsel of named parties to any such proceeding (including impleaded parties) include both the Indemnifying Party and the Indemnified Party Party, and representation of such parties by the same counsel would present a conflict of interestbe inappropriate due to actual or potential differing interests between them, then in which case, i.e. clause (ii), such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to may be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made retained by the Indemnified Party or at the expense of the Indemnifying Party. The Indemnifying Party may elect to settle any claim or Proceeding defended by it without the written consent of the Indemnified Party provided that such settlement is limited solely to payment of monetary damages that are payable in full by the Indemnifying Party and the Indemnified Party is fully discharged at the time of the settlement from any liability with respect to the claim or proceeding, and the Indemnified Party shall not admit any liability with respect thereto or settle, compromise, pay or discharge the same without the prior written consent of the Indemnifying Party so long as the case Indemnifying Party is controlling or defending such claim in good faith. The Indemnifying Party may be, not enter into any settlement that is not limited solely to payment of monetary damages without the Indemnified Party's prior written consent. Each of the Parties covenant to use all commercially reasonable efforts to cooperate fully with respect to the defense of any such claim, suit, action or proceeding of the kind referred to in covered by this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise8(d).
Appears in 1 contract
Sources: Stock Purchase Agreement (Fpic Insurance Group Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies any party hereto (the “Indemnified Party Party”) with respect to any matter which may give rise to a claim (other than a Tax Claim) for indemnification against the other party hereto (the “Third Party ClaimIndemnifying Party”) under this Article X, then the Indemnified Party shall use reasonable efforts to notify the Indemnifying Party thereof promptly and in any event within ten (10) days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is actually and materially prejudiced thereby.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party’s rights to assume the defense of such matter pursuant to this Section 10.4, defend against the matter in any manner it deems appropriate.
(c) The Indemnifying Party may at any point in time choose to assume the defense of all of such matter, in which event:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may retain separate counsel at its sole cost and expense (except that the Indemnifying Party shall be responsible for the fees and expenses of one separate co-counsel in each applicable jurisdiction 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 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); and
(iii) the Indemnifying Party shall reimburse the Indemnified Party for the reasonable costs of defense or investigation for the period prior to the assumption of the defense.
(d) Assumption of the defense of any matter by the Indemnifying Party shall constitute a waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this Article X.
(e) The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification against without the written consent of the Indemnifying Party under this Section 11Party, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)which consent may not be unreasonably withheld or delayed; provided, however, that failure on if the part of Indemnifying Party has failed to provide indemnification required to be provided pursuant to this Article X for thirty (30) days after a request therefor, then the Indemnified Party to notify may take any Indemnifying Party shall not relieve such action without the consent of the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement provided that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will must give the Indemnifying Party at least 30 days’ ten (10) days prior notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the action).
(f) The Indemnifying Party shall be obligated not consent to assume the defense entry of and full and complete liability and responsibility a judgment or enter into any settlement with respect to any matter which may give rise to a claim for such claim, suit, action indemnification or proceeding and enter into any and all Losses settlement which does not include a provision whereby the plaintiff or claimant in connection therewith in excess of the amount of unindemnifiable Losses which matter releases the Indemnified Party would have been obligated to pay under from all liability with respect thereto, without the proposed settlement or compromisewritten consent of the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Jupitermedia Corp)
Matters Involving Third Parties. (a) For purposes Promptly after receipt by an Indemnified Party of written notice of the commencement of any claim by a third party against it, such Indemnified Party will, if a claim is to be made against an Indemnifying Party, give prompt written notice to the Indemnifying Party of the commencement of such claim, but the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any Liability that it may have to any Indemnified Party, except as otherwise provided in Section 1.1 of this Section 11.3, a party against which indemnification may be sought Agreement and except to the extent that the Indemnifying Party demonstrates that the defense of such Proceeding is referred to as materially prejudiced by the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party’s failure to give such written notice.”
(b) If any third party shall notify the claim referred to in Section 1.4(a) is brought against an Indemnified Party with respect and it gives written notice to any matter (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11of the commencement of such third-party claim, then the Indemnifying Party will, unless the claim involves the Indemnified Party shall promptly notify each Indemnifying Party thereof Party’s Taxes, be entitled to participate in writing setting forth, in reasonable detail, the nature and basis of the such third-party claim and the amount thereofand, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceedingit desires, assume the defense thereof, provided that the Indemnifying Party’s of such third-party claim at its sole cost and expense with counsel is reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing sentence, and if (i) the Indemnifying Party shall thereafter consult with is also a party to such third-party claim and the Indemnified Party upon determines in good faith that joint representation would be inappropriate; or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party’s reasonable request for Party of its financial capacity to defend such consultation from time to time third-party claim and provide indemnification with respect to such third-party claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of then both the Indemnifying Party and the Indemnified Party would present a conflict may defend against the claim and each will bear its own costs and fees of interestdefense. If the Indemnifying Party assumes the defense of such third-party claim, then it shall promptly provide written notice of its intent to do so, and after such written notice is provided, the Indemnifying Party will not (as long as it diligently conducts such defense) be liable to the Indemnified Party may employ separate counsel for any attorney fees or any other expenses (other than reasonable third-party costs of investigation incurred in connection with requests by the Indemnifying Party) thereafter incurred by the Indemnified Party in the defense of such third-party claim. If the Indemnifying Party assumes the defense of a third-party claim such assumption will conclusively establish for purposes of this Agreement that the claims made in that third-party claim are within the scope of and subject to the Indemnifying Party’s obligations to defend, indemnify and hold harmless the Indemnified Party hereunder, and if (A) the compromise or settlement of such third-party claim does not involve anything other than the payment of money by the Indemnifying Party; (B) the settlement or compromise of such third-party claim includes an unconditional release of the Indemnified Party; and (C) the Indemnified Party shall have no liability with respect to any settlement or compromise entered into without its consent, any compromise or settlement of such third-party claim may be effected solely by the Indemnifying Party; otherwise any compromise or settlement shall require the consent to of the choice of counsel is requiredIndemnified Party, such which consent shall not to be unreasonably withheld) conditioned, withheld or delayed. If written notice is given to represent or defend it in an Indemnifying Party of the commencement of any such claim, action, suit or proceeding third-party claim and the Indemnifying Party shall pay does not, within twenty (20) days after the reasonable fees and disbursements Indemnified Party provides written notice of one such separate counsel. Whether or not the third-party claim to the Indemnifying Party chooses (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 the claim), give written notice to the Indemnified Party of its election to assume the defense of such third-party claim, the Indemnified Party may defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by and if the Indemnified Party or assumes the Indemnifying Party, as the case may be, defense of any such claim, suitno compromise or settlement of any such claim shall be made without the Indemnifying Party’s consent, action which shall not be unreasonably conditioned, withheld or proceeding delayed. The decision of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated not to assume the defense of and full and complete liability and responsibility for such claim, suit, action any claim shall not in any way prejudice the Indemnifying Party’s position that it is not legally or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which equitably required to do so under this Agreement. If the Indemnified Party assumes the defense of any third-party claim pursuant to the immediately preceding sentence, the Indemnifying Party may if it decides to do so participate in the defense of such third-party claim at its sole cost and expense.
(c) Notwithstanding the foregoing, if an Indemnified Party demonstrates that there is a reasonable probability that a third-party claim may adversely affect it other than as a result of monetary damages for which it would have been obligated be entitled to pay indemnification under this Agreement, the proposed Indemnified Party may in its sole discretion, by written notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such third-party claim, but the Indemnifying Party will not be bound by any determination, settlement or compromisecompromise of such third-party claim and shall have no obligation to indemnify the Indemnifying Party for Losses incurred by the Indemnified Party for such third-party claim.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the “Indemnified Party Party”) with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the other Party (the “Indemnifying Party Party”) under this Section 118, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in writing; which notice shall provide reasonable detail, the nature detail and basis of specificity as to the claim or proceeding and the amount thereof, to the extent known, and any other relevant documentation of damages sought in the possession of the Indemnified Party (a “Notice of Claim”)such claim or proceeding; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby materially prejudiced by such failureprejudiced.
(cii) The Indemnifying If a Third Party mayClaim is made against an Indemnified Party, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for entitled to participate in the entire amount of any Lossdefense thereof and, at any time during the course of any such claimif it so chooses, suit, action or proceeding, to assume the defense thereof, provided that thereof with counsel selected by the Indemnifying Party’s counsel is reasonably satisfactory . Should the Indemnifying Party so elect to assume the Indemnified Partydefense of a Third Party Claim, and the Indemnifying Party shall thereafter consult with not be liable to the Indemnified Party upon for any legal expenses subsequently incurred by the Indemnified Party’s reasonable request for such consultation from time to time Party in connection with respect to such claim, suit, action or proceedingthe defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, it being understood that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay control such defense. The Indemnifying Party shall be liable for the reasonable fees and disbursements expenses of one such separate counselcounsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). Whether or not If the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceedinga Third Party Claim, all of the Parties hereto indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(diii) Any settlement Notwithstanding clause (ii) above, (x) the Indemnified Party may, by prior written notice to the Indemnifying Party, assume the defense of any Third Party Claim if the Indemnified Party shall have been advised by counsel that there are one or compromise made more legal defenses available to the Indemnified Party which are different from or caused in addition to those available to the Indemnifying Party, and, in the reasonable opinion of the Indemnified Party and its counsel, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be made in conflict with those of the Indemnifying Party, or (y) if a Third Party claim seeks injunctive or equitable relief in addition to monetary damages for which it would be entitled to indemnification under this Agreement the Indemnified Party may, by prior written notice to the Indemnifying Party, assume the right to defend the injunctive or equitable relief claim (but not the monetary damages claims); provided, however, if the Indemnified Party assumes defense of such injunctive or equitable relief claim, the Indemnifying Party, subject to the provisions of this Section 8, shall be responsible for the reasonable fees and expenses of counsel employed by the Indemnified Party in defending, compromising or settling such claim; provided that the Indemnifying Party, as ’s liability with respect to any settlement or compromise shall be subject to Section 8(d)(iv) below. In the case may be, event of any such claim, suit, action a Third Party injunctive or proceeding equitable relief claim that would fall under both subsections (x) and (y) of the kind referred to in this Section 11.3 8(d)(iii), subsection (y) shall also be binding upon control.
(iv) Whether or not the Indemnifying Party or assumes the Indemnified Partydefense of a Third Party Claim, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of shall not admit any liability with respect to, or settle, compromise or discharge, such settlement Third Party Claim without its the Indemnifying Party’s prior written consentconsent (which consent shall not be unreasonably withheld). The Indemnified Party will give If the Indemnifying Party at least 30 days’ notice assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any proposed settlement settlement, compromise or compromise discharge of any claim, suit, action or proceeding it is defending, during which time a Third Party Claim that the Indemnifying Party may reject recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such proposed settlement or compromiseThird Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claimnot agree, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which without the Indemnified Party would have been obligated Party’s consent, to pay under the proposed settlement entry of any Judgment or compromisesettlement, compromise or decree that provides for injunctive or other nonmonetary relief affecting the Indemnified Party.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify -------------------------------- the Indemnified Party with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the Indemnifying Party under this Section 11Party, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forthpromptly; PROVIDED, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, howeverHOWEVER, that failure no delay on the part of the Indemnified Party to notify in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby materially prejudiced by such failure.
(c) The damaged. In the event any Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to notifies the Indemnified Party and delivering to within thirty (30) days after the Indemnified Party a written agreement that has given notice of the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and matter that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume is assuming the defense thereof, provided that (i) the Indemnifying Party’s Party will defend the Indemnified Party against the matter with counsel is of its choice reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party shall thereafter consult with will be responsible for the fees and expenses of the separate co-counsel to the extent the third party seeks injunctive relief or criminal sanctions), (iii) the Indemnified Party upon will not consent to the Indemnified Party’s reasonable request for such consultation from time to time entry of any judgment or enter into any settlement with respect to such claim, suit, action or proceeding. If the matter without the prior written consent of the Indemnifying Party assumes such defense(which consent shall not be unreasonably withheld or delayed), and (iv) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). In the event the Indemnifying Party fails to notify the Indemnified Party within thirty (30) days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party shall have may defend against, or enter into any settlement with respect to, the matter in any manner it reasonably may deem appropriate without waiving any right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed indemnity therefor by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Sources: Asset Exchange Agreement (Standard Motor Products Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify any of the Freeport Indemnitees or the COP Indemnitees (the "Indemnified Party Person") with respect to any matter (a “"Third Party Claim”") that which may give rise to a claim for indemnification against any Party (the "Indemnifying Party Party") under this Section 11Article 6, then the Indemnified Party Person shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)writing; provided, however, that failure on the part of the Indemnified Party Person to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(cb) The Indemnifying Party may, (i) at its own expense, participate in the defense of any claim, suit, action or proceeding covered by providing any of the indemnities set forth in this Article 6 and (ii) upon (x) written notice to the Indemnified Party Person and (y) delivering to the Indemnified Party Person of a written agreement that the Indemnified Party Person is entitled to indemnification pursuant to Section 11 Sections 6.1 or 6.2 for all Losses arising out of such claim, suit, action or proceeding, proceeding and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that (1) the Indemnifying Party’s 's counsel is reasonably satisfactory to the Indemnified PartyPerson, and (2) the Indemnifying Party shall thereafter consult with the Indemnified Party Person upon the Indemnified Party’s Person's reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party Person shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s 's counsel of both the Indemnifying Party and the Indemnified Party Person would present such counsel with a conflict of interest, then such Indemnified Party Person may employ separate counsel (Indemnifying Party’s 's consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(dc) Any settlement or compromise made or caused to be made by the Indemnified Party Person or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 6.5 shall also be binding upon the Indemnifying Party or the Indemnified PartyPerson, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party Person as a result of such settlement without its prior written consent. The Indemnified Party Person will give the Indemnifying Party at least 30 days’ ' notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party Person would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Matters Involving Third Parties. (ai) For purposes Promptly after receipt by an indemnified party under Sections 7(c) or 7(d) above of this Section 11.3, a party against which indemnification may be sought is referred to as notice of the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify the Indemnified Party with respect to commencement of any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against an indemnified party, such indemnified party will, if a claim is to be made against an indemnifying party under such Section, give notice to the Indemnifying Party under this Section 11indemnifying party of the commencement of such claim, then but the Indemnified Party shall promptly failure to notify each Indemnifying Party thereof the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of the matter giving rise to the indemnified party's claim is prejudiced by the indemnifying party's failure to give such notice.
(ii) If any proceeding resulting from the matters referred to in writing setting forth, in reasonable detailSections 7(c) or (d) above is brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such proceeding, the nature and basis of indemnifying party will, unless the claim and the amount thereofinvolves Taxes, be entitled to participate in such proceeding and, to the extent known, and any other relevant documentation in the possession of the Indemnified Party that it wishes (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (A) the indemnifying party is also a party to such proceeding and then solely the indemnified party determines in good faith that joint representation would be inappropriate, or (B) the indemnifying party fails to provide reasonable assurance to the extent) the Indemnifying Party is thereby materially prejudiced by indemnified party of its financial capacity to defend such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to provide indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claimproceeding), suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of such proceeding with counsel reasonably satisfactory to the indemnified party (it being agreed that ▇▇▇▇▇ ▇▇▇▇▇▇ P.C. and ▇▇▇▇▇ ▇▇▇▇ LLP are each considered satisfactory for these purposes) and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under Section 7 for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a proceeding, no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (1) there is no finding or admission of any violation of applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of any federal, state, local or foreign governments (and all agencies thereof) or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, (2) the sole relief provided is monetary damages that are paid in full by the indemnifying party and complete (3) the indemnified party will have no liability and responsibility for with respect to any compromise or settlement of such claim, suit, action or claims. If notice is given to an indemnifying party of the commencement of any proceeding and the indemnifying party does not, within 10 days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such proceeding, the indemnifying party will be bound by any determination made in such proceeding or any compromise or settlement effected by the indemnified party.
(iii) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such proceeding, but the indemnifying party will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(iv) Sellers and all Losses Buyer hereby consent to the non-exclusive jurisdiction of any court in connection therewith which a proceeding is brought against any indemnified party for purposes of any claim that an indemnified party may have under this Agreement with respect to such proceeding or the matters alleged therein, and agree that process may be served on Sellers with respect to such a claim anywhere in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromiseworld.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes In the event of this Section 11.3, any claim by a person or entity not a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify the Indemnified Party with respect to any matter this Agreement (a “Third Party Claim”) that which may give rise to a claim for indemnification against the Indemnifying Party under this Section 11Article 10, then the Party entitled to indemnification (the “Indemnified Party”) shall promptly (and in any event within five (5) Business Days after receiving notice of the Third Party Claim) notify the other Party (the “Indemnifying Party”) of such Third Party Claim and the material facts known to the Indemnified Party shall promptly notify each Indemnifying Party thereof regarding such claim in writing setting forthwriting. The failure to provide such notice in a timely manner will not affect the Indemnified Party’s right to indemnification hereunder, in reasonable detail, the nature and basis of the claim and the amount thereof, except to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) thereby. The Indemnifying Party may, at its own expense, participate Parties will cooperate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Third Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Claim.
(b) No Indemnifying Party shall be liable for the entire amount settle or compromise or voluntarily enter into any binding agreement to settle or compromise, or consent to entry of any Lossjudgment arising from, at any time during Third Party Claim except with the course prior written consent of the Indemnified Party, which consent will not be unreasonably withheld. The Indemnifying Party shall undertake the defense of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is Third Party Claim by representatives of its own choosing reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the The Indemnified Party shall have the right (but not the obligation) to participate in the any such defense thereof and to employ counsel, at of a Third Party Claim with advisory counsel of its own expensechoosing. Such participation shall be at the expense of the Indemnified Party, separate from unless any Indemnified Party reasonably determines that, because of a conflict of interest or otherwise, the counsel employed Indemnifying Party is not adequately representing or may not adequately represent its interests, in which case the reasonable costs of such participation by the Indemnified Party shall be at the expense of the Indemnifying Party. If, however, In the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or event the Indemnifying Party, as after expiration of half of the case may beperiod for the presentation of an answer, of a defense, a motion to dismiss or any other similar action against any such claimThird Party Claim, suitfails to begin to diligently defend against such Third Party Claim (or at any time thereafter ceases to diligently defend against such Third Party Claim), action the Indemnified Party will have the right to undertake the defense, compromise or proceeding settlement of such Third Party Claim on behalf of, and for the account of, the Indemnifying Party, at the expense and risk of the kind referred Indemnifying Party. No Indemnified Party shall settle or compromise or voluntarily enter into any binding agreement to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement settle or compromise, provided that no obligationor consent to entry of any judgment arising from, restriction any Third Party Claim, which agreement or Loss shall be imposed judgment would impose liability on the Indemnified Party as a result of such settlement without its Indemnifying Party, except with the prior written consent. The Indemnified Party will give consent of the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claimParty, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall consent will not be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromiseunreasonably withheld.
Appears in 1 contract
Matters Involving Third Parties. (a) For The party or parties making a claim for indemnification under this Section 15 shall be for the purposes of this Section 11.3Agreement, a party against which indemnification may be sought is referred to as the “Indemnifying "Indemnified Party” " and the party which may be entitled to indemnification is or parties against whom such claims are asserted under this Section 15 shall be, for the purposes of this Agreement, referred to as the “"Indemnifying Party". All claims by any Indemnified Party.”Party under this Section 15 shall be asserted and resolved as follows:
(bi) If In the event that (x) any third party shall notify claim, demand or action is asserted or instituted by any person other than the parties to this Agreement or their Affiliates which could give rise to Buyer Damages or Seller Damages, as applicable, for which an Indemnifying Party could be liable to an Indemnified Party with respect to any matter under this Agreement (such claim or demand or action, a “"Third Party Claim”" or (y) that may give rise to any Indemnified Party under this Agreement shall have a claim for indemnification against the to be indemnified by any Indemnifying Party under this Section 11Agreement which does not involve a Third Party Claim (such claim, then a "Direct Claim"), the Indemnified Party shall promptly notify each with reasonable promptness send to the Indemnifying Party thereof in writing setting forth, in reasonable detail, a written notice specifying the nature and basis of the claim such claim, demand or action and the amount or estimated amount thereof, to provided that a delay in notifying the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless of its obligations under this Agreement except to the extent that (and then solely only to the extentextent that) such failure shall have caused the Buyer Damages or Seller Damages, as applicable, for which the Indemnifying Party is thereby materially prejudiced by obligated to be greater than such failure.
(c) The Indemnifying Party mayBuyer Damages or Seller Damages, at its own expenseas applicable, participate in the defense of any claim, suit, action or proceeding by providing written notice to would have been had the Indemnified Party and delivering to given the Indemnified Indemnifying Party a written agreement that prompt notice (which amount or estimated amount shall not be conclusive of the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out final amount, if any, of such claim, suitdemand or action) (a "Claim Notice").
(ii) Except as provided below, action or proceedingin the event of a Third Party Claim, and that the Indemnifying Party shall be liable for entitled to control the entire amount defense of such Third Party Claim and to appoint counsel of the Indemnifying Party's choice at the expense of the Indemnifying Party to represent the Indemnified Party and any Loss, at any time during others the course of any Indemnifying Party may reasonably designate in connection with such claim, suit, demand or action or proceeding, assume (in which case the defense thereof, Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by any Indemnified Party except as set forth below); provided that the Indemnifying Party’s such counsel is reasonably satisfactory acceptable to the Indemnified Party, and the . Notwithstanding an Indemnifying Party shall thereafter consult with the Party's election to appoint counsel to represent an Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time in connection with respect to such claima Third Party Claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the an Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof of such claim and to employ counselcounsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party (except as provided below and except for any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense which, at its own expensenotwithstanding the foregoing, separate from the counsel employed shall be borne by the Indemnifying Party). If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation If requested by the Indemnifying Party’s counsel of both , the Indemnified Party agrees to cooperate with the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate its counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in contesting any such claim, action, suit demand or proceeding and action which the Indemnifying Party defends, or, if appropriate and related to the claim, demand or action in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person. The Indemnifying Party shall not be entitled to assume control of the defense of a Third Party Claim and shall pay the reasonable fees and disbursements expenses of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made counsel retained by the Indemnified Party (provided that such counsel is reasonably acceptable to the Indemnifying Party) if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would reasonably be likely to be materially detrimental to the Indemnified Party's reputation or business, (iii) the claim seeks an injunction or equitable relief against the Indemnified Party or (iv) the claim involves liabilities under environmental laws that require remedial action at facilities that were transferred pursuant to this Agreement, in which case the Indemnified Party shall have control and management authority over the resolution of such claims, including hiring environmental consultants and conducting environmental investigations and cleanups; provided that the Indemnified Party shall keep the Indemnifying Party apprised of any major developments relating to any such environmental claim and provided further that, in the case of any of (i) through (iv) above, (x) the Indemnified Party shall not agree to any stipulation to or the entry of a court order that adversely affects the Indemnifying Party without the Indemnifying Party's consent and (y) the Indemnifying Party shall have the right to retain counsel of its choice at its own expense and participate in the defense of the Third Party Claim, in which case the third sentence of this Section 15(d)(ii) shall be fully applicable. No Third Party Claim (regardless of whether the Indemnifying Party has assumed control of such Third Party Claim or such Third Party Claim falls into any of the categories set forth in (i) through (iv) above) may be settled or compromised (i) by the Indemnified Party without the prior written consent of the Indemnifying Party, as the case may be, of any such claim, suit, action which consent shall not be unreasonably withheld or proceeding of the kind referred to in this Section 11.3 shall also be binding upon delayed or (ii) by the Indemnifying Party or without the prior written consent of the Indemnified Party, as which consent shall not be unreasonably withheld or delayed. In the case may beevent any Indemnified Party settles or compromises or consents to the entry of any judgment with respect to any Third Party Claim without the prior written consent of the Indemnifying Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss each Indemnified Party shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give deemed to have waived all rights against the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay indemnification under the proposed settlement or compromisethis Section 15.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hollinger International Inc)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, Should any claim or Proceeding by or involving a third party against arise after the Closing Date for which indemnification may be sought is referred to as the Seller or Purchaser (the “Indemnifying Party” and ”), is liable under the party which may be terms of this Agreement, the parties entitled to indemnification is referred to hereunder as the case may be (the “Indemnified Parties”) shall notify the Indemnifying Party in writing within fifteen (15) days after such claim or Proceeding arises and is known to the Indemnified Parties (provided, however, that any failure or delay in so notifying the Indemnifying Party shall not affect the indemnification obligations of the Indemnifying Party hereunder except to the extent that such failure or delay causes actual prejudice to the Indemnifying Party.”
), and the Indemnifying Party may elect to assume the defense of such claim or Proceeding by giving written notice to the Indemnified Parties stating that the Indemnifying Party intends to assume such defense within fifteen (b15) If any third party days after receipt of notice from the Indemnified Parties of such claim or Proceeding (unless the claim or Proceeding reasonably requires a response in less than fifteen (15) days after the notice is given to the Indemnifying Party, in which event the Indemnifying Party shall notify the Indemnified Party with respect at least five (5) Business Days prior to any matter (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”such reasonably required response date); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult assume the defense of such claim or Proceeding, through counsel reasonably satisfactory to the Indemnified Parties; provided, that the Indemnified Parties may participate in such defense at their own expense but, in any event, the Indemnifying Party shall have the right, as long as it is actively defending any claim or Proceeding, to control such defense. The Indemnified Parties shall afford counsel designated by the Indemnifying Party and other authorized representatives of the Indemnifying Party reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Indemnified Parties, and to the personnel of the Indemnified Parties, and shall otherwise use all reasonable efforts to cooperate with the Indemnified Indemnifying Party, such counsel and such other authorized representatives in connection with the exercise of the rights of the Indemnifying Party upon pursuant to this Section 9.4.
(b) If the Indemnifying Party elects to defend any such claim or Proceeding, the Indemnified Parties shall give the Indemnifying Party a reasonable opportunity:
(i) to take part in any examination of the books and records of the Indemnified Parties;
(ii) to conduct any Proceedings or negotiations in connection therewith and necessary or appropriate to defend the Indemnified Parties or prosecute any claim or Proceeding with respect thereto;
(iii) to take all other required steps or actions to settle or defend any such claim or Proceeding; and
(iv) to employ counsel to contest any such claim or Proceeding in the name of the Indemnified Parties, or otherwise.
(c) If the Indemnifying Party shall not assume the defense of, or if after so assuming it shall fail to actively defend, any such claim or Proceeding, the Indemnified Parties may defend against any such claim or Proceeding in such manner as they may deem appropriate, and the Indemnified Parties may, with the consent of the Indemnifying Party’s reasonable request , which consent shall not be unreasonably withheld, settle such claim or Proceeding on such terms as presented to the Indemnifying Party, and the Indemnifying Party promptly shall reimburse the Indemnified Parties for the amount of such consultation from time to time settlement and for all expenses, legal and otherwise, reasonably and necessarily incurred by the Indemnified Parties in connection with the defense against and settlement of such claim or Proceeding. If there is no settlement of any such claim or Proceeding, the Indemnifying Party shall satisfy any judgment rendered with respect to such claimclaim or Proceeding, suit, action or proceeding. If the Indemnifying Party assumes such defense, before the Indemnified Party shall have Parties are required to do so, and pay all expenses, legal or otherwise, reasonably and necessarily incurred by the right (but not the obligation) to participate Indemnified Parties in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then against such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent claim or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofProceeding.
(d) Any settlement If a judgment is rendered against any Indemnified Party in any claim or compromise made or caused to be made Proceeding covered by the indemnification hereunder, or any Encumbrance attaches to any of the assets of any Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party immediately upon such entry or attachment shall pay such judgment in full or discharge such Encumbrance unless, at the Indemnifying Party expense and direction, an appeal is taken under which the execution of the judgment or the Indemnified Party, as attachment of the case may be, in the same manner as if Encumbrance is stayed. If and when a final judgment or decree had been entered by a court of competent jurisdiction is rendered in the amount of any such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejectionProceeding, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for forthwith pay such claim, suit, action judgment or proceeding and discharge such Encumbrance before any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated is compelled to pay under the proposed settlement or compromisedo so.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medical Transcription Billing, Corp)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as If any Third Party shall notify any Party (the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “"Indemnified Party.”
(b") If any third party shall notify the Indemnified Party with respect to any matter (a “"Third Party Claim”") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party Party") under this Section 119, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, and inquire as to whether the nature and basis of the claim and the amount thereof, Indemnifying Party intends to the extent known, and any other relevant documentation in the possession of defend the Indemnified Party (a “Notice of against such Third Party Claim”); provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby materially prejudiced prejudiced.
(b) Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim at the cost and expense of the Indemnifying Party with counsel of its choice so long as the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that (i) the Indemnifying Party will indemnify, to the extent permitted by such failureLaw, the Indemnified Party from and against the entirety of any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, and (ii) the Indemnifying Party will not seek to assert against the Indemnified Party any legal defense to its indemnification obligations hereunder with respect to the Third Party Claim.
(c) The So long as the Indemnifying Party mayis conducting the defense of the Third Party Claim, (i) the Indemnified Party may retain separate co-counsel at its own expense, sole cost and expense and participate in the defense of any claimthe Third Party Claim, suit, action or proceeding by providing written notice to (ii) the Indemnified Party will 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 Indemnifying Party (which consent shall not unreasonably be withheld), and delivering (iii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless written agreement is obtained releasing the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for from all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofliability thereunder.
(d) Any settlement or compromise made or caused to be made by In the event that the Indemnifying Party does not send the notice provided for in Section 9.6(b) within fifteen (15) days after the Indemnified Party or has given notice of the Third Party Claim to the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on then the Indemnified Party as a result shall thereafter be entitled to defend against the Third Party Claim with counsel of such settlement without its prior written consentchoice and the Indemnifying Party's right to defend against the Third Party Claim shall terminate. The Indemnifying Party will reimburse the Indemnified Party will give for the Indemnifying reasonable costs of defending against the Third Party at least 30 days’ notice of Claim (including reasonable attorneys' fees and expenses) in addition to paying any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated amounts to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated is otherwise entitled to pay under from the proposed settlement or compromiseIndemnifying Party hereunder.
Appears in 1 contract
Sources: Title Transfer Agreement (Northeast Utilities System)
Matters Involving Third Parties. Subject to the periods of limitation described in Section 14.2 and 14.3: Whenever any of FGC, Assignee or Assignor (a) For in any case for the purposes of this Section 11.3Article 14, an "Indemnified Party") shall learn after the Closing of a claim that, if allowed (whether voluntarily or by judicial or quasi-judicial tribunal or agency), would give rise to an obligation of another party against which indemnification may be sought is referred to as (the “"Indemnifying Party” and the party which may be entitled ") to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify indemnify the Indemnified Party with respect to under any matter (a “Third Party Claim”) that may give rise to a claim for indemnification against provision of this Agreement, before paying the Indemnifying Party under this Section 11same or agreeing thereto, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, of all such facts within the nature and basis of the Indemnified Party's knowledge with respect to such claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party thereof (a “"Notice of Claim”"); provided. If, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely prior to the extentexpiration of fifteen (15) days from the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party maymailing of a Notice of Claim, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall request, in writing, that such claim not be liable for paid, the entire amount of any LossIndemnified Party shall not pay the same, provided the Indemnifying Party proceeds promptly, at any time during the course its or their own expense (including employment of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party), to settle, compromise or litigate, in good faith, such claim. After notice from the Indemnifying Party requesting the Indemnified Party not to pay such claim and the Indemnifying Party's assumption of the defense of such claim at its or their expense, the Indemnifying Party shall thereafter consult with not be liable to the Indemnified Party upon for any legal or other expense subsequently incurred by the Indemnified Party’s reasonable request for such consultation from time to time Party in connection with respect to such claim, suit, action or proceedingthe defense thereof. If the Indemnifying Party assumes such defenseHowever, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s expense and with counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interestits choice in such settlement, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent compromise or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consentlitigation. The Indemnified Party will give shall not be required to refrain from paying any claim which has matured by a court judgment or decree, unless an appeal is duly taken therefrom and execution thereof has been stayed, nor shall the Indemnified Party be required to refrain from paying any claim where the delay in paying such claim would result in the foreclosure of a lien upon any of the property or assets then held by the Indemnified Party. The failure to provide a timely Notice of Claim as provided in this Section 14.4 shall not excuse the Indemnifying Party at least 30 days’ notice of from its or their continuing obligations hereunder; however, the Indemnified Party's claim shall be reduced by any proposed settlement or compromise of any claimdamages, suitif any, action or proceeding it is defending, during which time to the Indemnifying Party may reject such proposed settlement or compromise; provided that resulting from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated Party's delay or failure to pay under the proposed settlement or compromiseprovide a Notice of Claim as provided in this Section 14.4.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Family Golf Centers Inc)
Matters Involving Third Parties. (a) For purposes In connection with any Third Party Claim, the Indemnifying Party will have the right to defend the Indemnified Party against such Third Party Claim with counsel of this Section 11.3, a party against which indemnification may be sought is referred its choice reasonably satisfactory to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”Party provided that:
(bi) If any third party shall notify the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder,
A. the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief,
B. settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to any matter establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and
C. the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(a “ii) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with subsection:
A. the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim”) that may give rise to a claim for indemnification against , and
B. the Indemnifying Party under this Section 11, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, will determine whether to consent to the extent known, and entry of any other relevant documentation in judgment or enter into any settlement with respect to the possession Third Party Claim subject to the prior written consent of the Indemnified Party (a “Notice not to be withheld unreasonably).
(iii) In the event any of Claim”); providedthe conditions in clause (i) above is or becomes unsatisfied, however, that failure on the part of ,
A. the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (may defend against, and then solely consent to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense entry of any claim, suit, action judgment or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of enter into any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time settlement with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defenseto, the Indemnified Third Party shall have the right Claim in any manner it reasonably may deem appropriate (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith),
B. the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the reasonable costs of interestdefending against the Third Party Claim (including reasonable attorneys' fees and expenses), then such and
C. the Indemnifying Parties will remain responsible for any Damages the Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is requiredsuffer resulting from, such consent not to be unreasonably withheld) to represent or defend it in any such claimarising out of, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may berelating to, in the same manner as if a final judgment nature of, or decree had been entered caused by a court of competent jurisdiction the Third Party Claim to the fullest extent provided in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisethis Section.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies any party hereto (the "Indemnified Party Party") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the other party hereto (the "Indemnifying Party Party") under this Section 119, then the Indemnified Party shall promptly will notify each the Indemnifying Party thereof in writing setting forth, promptly and in reasonable detail, any event within 10 days after receiving any written notice from a third party stating the nature and basis of any claim made by the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)third party; provided, however, provided that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not will relieve the Indemnifying Party from any obligation hereunder unless (unless, and then solely to the extentextent that, the Indemnifying Party is prejudiced thereby. The Indemnified Party shall provide to the Indemnifying Party on request all information and documentation reasonably necessary to support and verify any Losses which the Indemnified Party believes give rise to a claim for indemnification hereunder and shall give the Indemnifying Party reasonable access to all books, records and personnel in the possession or under the control of the Indemnified Party which would have bearing on such claim. In the event the Indemnifying Party notifies the Indemnified Party within 30 days after the date the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense of such matter (i) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to will defend the Indemnified Party and delivering to against the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out matter with counsel of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is its choice reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may retain separate counsel at its sole cost and expense (except that the Indemnifying Party shall thereafter consult with will be responsible for the fees and expenses of such separate co-counsel to the extent the Indemnified Party upon reasonably concludes in good faith that the Indemnified Party has defenses available to it that may conflict with those of the Indemnifying Party’s reasonable request for such consultation from time ), (iii) the Indemnified Party will not consent to time the entry of a judgement or enter into any settlement with respect to such claimthe matter without the written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), suitand (iv) the Indemnifying Party will not consent to the entry of a judgement with respect to the matter or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, action without the written consent of the Indemnified Party (not to be withheld or proceedingdelayed unreasonably). If the Indemnifying Party assumes does not assume the defense of such defensematter, the Indemnified Party shall have may defend against the right matter in any manner it reasonably may deem appropriate, and (but not the obligationi) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict will defend the matter with counsel of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent its choice reasonably satisfactory to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time (ii) the Indemnifying Party may reject such proposed retain separate counsel at its sole cost and expense, and (iii) the Indemnified Party will not consent to the entry of a judgement or enter into any settlement or compromise; provided that from and after such rejection, with respect to the matter without the written consent of the Indemnifying Party (not to be withheld or delayed unreasonably).
(b) The provisions of paragraph (a) of this Section 9.4 shall apply to all claims for indemnification hereunder except indemnification claims which involve Tax matters pertaining to Terex B.V. and/or the Subsidiaries, which claims shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisegoverned by Article 10.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bA) If any third party shall notify the any Indemnified Party with respect to any matter (a “Third Third-Party Claim”) that which may give rise to a claim for indemnification against the an Indemnifying Party under this Section 117, then the Indemnified Party shall promptly (and in any event within twenty (20) business days after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing setting forthwriting, describing in reasonable detaildetail the nature of the Third-Party Claim and, if applicable, the nature and basis amount of the claim and the amount thereof, claimed Losses. Failure to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to so timely notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation its obligations hereunder unless (and then solely to the extent) the Indemnifying Party is thereby actually materially prejudiced by such failureas a result thereof.
(cB) The Indemnifying Party may, at its own expense, participate in will have the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Lossright, at any time during within twenty (20) business days of being notified by the course Indemnified Party of any such claimThird-Party Claim, suit, action or proceeding, to assume and thereafter conduct the defense thereof, provided that of the Indemnifying Party’s Third-Party Claim with counsel is of his or its choice reasonably satisfactory to the Indemnified Party, and ; provided that (1) the Indemnifying Party shall thereafter consult with has unconditionally acknowledged to the Indemnified Party upon in writing its obligation to indemnify the Indemnified Party’s reasonable request for Party to the full amount of any Losses in connection with such consultation from time Third-Party Claim and to time discharge any Losses incurred or to be incurred by the Indemnified Party with respect to such claimThird-Party Claim, suitand (2) the Indemnifying Party conducts such defense actively and diligently; and provided further, action that the Indemnifying Party will not have the right to assume the defense of a Third-Party Claim (a) if such claim principally seeks injunctive relief against Target or proceedingany of its Affiliates (including Buyer); (b) if such claim relates to matters involving criminal conduct or any claim by a Governmental Entity; or (c) if such claim would reasonably be expected to damage or impair any Indemnified Party’s or its Affiliate’s business relationships with any of such Person’s material customers, suppliers, vendors or other service providers. If the Indemnifying Party assumes such defenseis conducting the defense of the Third-Party Claim in accordance with this Section 7(f)(ii)(B), then (I) the Indemnified Party shall have the right (but not the obligation) to may retain separate co-counsel at its sole cost and expense and participate in the defense thereof of the Third-Party Claim, and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, (II) the Indemnifying Party reasonably determines, based upon will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written advice consent of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld, delayed or conditioned), unless the judgment or proposed settlement involves only the payment of money damages in an amount less than the limitations, if any, provided under Section 7(d) with respect to represent the Indemnifying Party’s indemnification obligations under this Section 7, and does not involve any admission of fault or defend it violation of Law by or on behalf of the Indemnified Party.
(C) Unless and until an Indemnifying Party completely assumes the defense of the Third-Party Claim as provided in any such claimSection 7(f)(ii)(B), action, suit or proceeding and if the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses fails to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in diligently conduct the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement Third-Party Claim or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated not permitted to assume the defense of and full and complete liability and responsibility such Third-Party Claim, the Indemnified Party may defend against the Third-Party Claim in any manner it may reasonably deem appropriate, with the Indemnifying Party responsible for such claim, suit, action or proceeding and any and all Losses reasonable costs incurred in connection therewith in excess (including reasonable fees and expenses of the amount of unindemnifiable Losses which counsel).
(D) In no event will the Indemnified Party would have been obligated consent to pay under the proposed entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, delayed or compromiseconditioned).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MSA Safety Inc)
Matters Involving Third Parties. (a) For purposes If any Proceeding shall be instituted, or any claim or demand made, against an indemnified party or a party which proposes to assert that the provisions of this Section 11.3, a Article IX apply (the “Indemnified Party”) such Indemnified Party shall give prompt written notice of the claim to the party against which indemnification may obliged or alleged to be sought is referred so obliged to as indemnify such Indemnified Party (the “Indemnifying Party” and ”). The omission to so notify the party which may be entitled Indemnifying Party shall not relieve such Indemnifying Party from any duty to indemnification is referred indemnify in respect of such claim unless the omission to as notify materially prejudice the “ability of the Indemnifying Party to participate in or assume the defense of such claim. After any Indemnifying Party has received notice from an Indemnified Party that a claim has been asserted against such Indemnified Party.”
(b) If any third party , the Indemnifying Party shall notify promptly pay to the Indemnified Party the amount of such Damages in accordance with respect and subject to any matter (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under provisions of this Section 11, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)9.4; provided, however, that failure on the part of the Indemnified Party to notify no such payment shall be due during any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) period in which the Indemnifying Party is thereby materially prejudiced by contesting in good faith either its obligation to make such failure.
(c) The indemnification or the amount of Damages payable, or both. After any Indemnifying Party mayhas received notice from an Indemnified Party that a claim has been asserted against it by a third party, the Indemnifying Party shall have the right, upon giving written notice to the Indemnified Party, to participate in the defense of such claim and to elect to assume the defense against the claim, at its own expense, participate in through the Indemnified Party’s attorney or an attorney selected by the Indemnifying Party and approved by the Indemnified Party, which approval shall not be unreasonably withheld or delayed; provided, however, that it shall be a condition to such election to assume such defense of any claim, suit, action or proceeding by providing written notice that (i) the Indemnifying Party shall provide the Indemnified Party with evidence reasonably acceptable to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Indemnifying Party is entitled will have the financial resources to defend against the claim and to fulfill its indemnification pursuant obligations hereunder, and (ii) the claim involves only money damages and does not seek an injunction or other equitable relief. If the Indemnifying Party fails to Section 11 for all Losses arising out give prompt written notice of such claimelection within thirty days of notice, suit, action or proceeding, and that then the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, deemed to have elected not to assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, of such claim and the Indemnifying Party shall thereafter consult with the Indemnified Party upon may defend against the Indemnified Party’s reasonable request for claim with its own attorney. The Indemnifying Party agrees that if it assumes such consultation from time to time with respect to defense, it will conduct such claim, suit, action or proceedingdefense actively and diligently. If the Indemnifying Party assumes is conducting the defense of a claim, the Indemnified Party may retain separate co-counsel at its cost and expense and participate in such defense, .
(b) If the Indemnifying Party does not elect to participate in or to assume or is deemed to have elected not to assume the defense of a claim or in the event any of the conditions in the proviso to Section 9.4(a) above becomes unsatisfied then: (i) the Indemnified Party alone shall have the right to conduct such defense; (ii) the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof compromise and to employ counselsettle, at its own expensein good faith, separate from the counsel employed by claim with the prior consent of the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheldwithheld or delayed; (iii) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay will periodically reimburse the Indemnified Party for costs (including reasonable fees and disbursements of one such separate counsel. Whether or not legal fees), unless the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all is contesting the right of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party to indemnification under this Article IX; and (iv) if it is ultimately determined that the claim of loss which shall form the basis of such judgment or the Indemnifying Party, as the case may be, settlement is one that is validly an obligation of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or that elected not to assume the Indemnified Partydefense, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of then such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated bound by any ultimate judgment or settlement as to assume the defense of existence and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses the claim and the amount of said judgment or settlement (including the costs and expenses of defending such claims) shall be conclusively deemed for all purposes of this Agreement to be a Liability on account of which the Indemnified Party would have been obligated is entitled to pay under the proposed settlement or compromisebe indemnified hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (True Nature Holding, Inc.)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify any Party (the "Indemnified Party Party") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the other Party (the "Indemnifying Party Party") under this Section 119, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof promptly (and in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of event within 30 days after receiving any written notice from a third party). Once the Indemnified Party (a “Notice has given notice of Claim”); providedthe matter to the Indemnifying Party, the Indemnified Party may defend against the matter in any manner it reasonably may deem appropriate. In the event the Indemnifying Party notifies the Indemnified Party at any time after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extentA) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to will defend the Indemnified Party and delivering to against the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out matter with counsel of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is its choice reasonably satisfactory to the Indemnified Party, (B) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party shall thereafter consult with will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party upon concludes reasonably that the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If counsel the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present has selected has a conflict of interest), then such (C) the Indemnified Party may employ separate counsel (Indemnifying Party’s will not consent to the choice entry of counsel is required, such any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party (not to be unreasonably withheld), and (D) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay will not consent to the reasonable fees and disbursements entry of one such separate counsel. Whether any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the Indemnifying Party chooses to defend plaintiff or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate claimant in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by matter releases the Indemnified Party or from all liability with respect thereto, without the Indemnifying Party, as the case may be, written consent of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall (not to be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisewithheld unreasonably).
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that may give rise to a claim for indemnification against any other Party (the "Indemnifying Party Party") under this Section 115, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forthwriting. Failure to give prompt notice of a Third Party Claim hereunder shall not affect the Indemnifying Party's obligations, in reasonable detail, the nature and basis of the claim and the amount thereof, except to the extent known, that the Indemnifying Party is materially prejudiced by such failure to give prompt notice.
(ii) The Indemnifying Party shall have the right to assume and any other relevant documentation in thereafter conduct the possession defense of the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party (a “Notice of Claim”)Party; provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, any matter through counsel of its own choosing at its own expense, separate from the counsel employed by the Indemnifying Party. If; provided further, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements expenses of one such separate counsel. Whether or not counsel for the Indemnified Party if (A) the Indemnifying Party chooses has agreed to defend pay such fees and expenses or prosecute (B) the named parties to any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
proceeding (dincluding any impleaded parties) Any settlement or compromise made or caused to be made by include both the Indemnified Party or and the Indemnifying Party, as and such Indemnified Party shall have been advised by counsel that the case may be, representation of both parties would be inappropriate due to actual or potential differing interests between them.
(iii) The Indemnifying Party shall not consent to the entry of any such claim, suit, action judgment or proceeding enter into any settlement with respect to the Third Party Claim without the prior written consent of the kind referred Indemnified Party (not to in this Section 11.3 shall also be binding withheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party.
(iv) Unless and until the Indemnifying Party or assumes the Indemnified Partydefense of the Third Party Claim as provided in Section 5(d)(ii), as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result may defend against the Third Party Claim in any manner it reasonably may deem appropriate.
(v) In no event shall the Indemnified Party consent to the entry of such any judgment or enter into any settlement with respect to the Third Party Claim without its the prior written consent. The Indemnified Party will give consent of the Indemnifying Party at least 30 days’ notice of any proposed settlement which consent shall not be withheld or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisedelayed unreasonably.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Gulfterra Energy Partners L P)
Matters Involving Third Parties. If any third party notifies any Party (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify the Indemnified Party with respect to any matter (a “Third Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party Party”) under this Section 116, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)writing; provided, however, that failure no delay on the part of the Indemnified Party to notify in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) prejudiced. The Indemnifying Party mayshall not have the right to conduct the defense or compromise and settle any such Third-Party Claim; however, at its own expense, any Indemnifying Party shall be entitled to participate in the defense of any claimsuch Third-Party Claim at such Indemnifying Party’s expense, suit, action or proceeding and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by providing written notice appointing reputable counsel reasonably acceptable to the Indemnified Party and delivering to be the lead counsel in connection with such defense; provided that, prior to the Indemnifying Party assuming control of such defense it shall first verify to the Indemnified Party a written agreement in writing that such Indemnifying Party shall be fully responsible (with no reservation of any rights) for all Liabilities relating to such claim for indemnification and that such Indemnifying Party shall provide full indemnification to the Indemnified Party is with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder; and provided further, that:
(i) the Indemnified Party shall be entitled to indemnification pursuant to Section 11 for all Losses arising out participate in the defense of such claimclaim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense which, suitnotwithstanding the foregoing, action or proceedingshall be borne by the Indemnifying Party, and except that the Indemnifying Party shall pay all of the fees and expenses of such separate counsel if the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party);
(ii) the Indemnifying Party shall not be liable entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal or quasi criminal proceeding, action, indictment, allegation or investigation; (ii) the entire Indemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification could be detrimental to or injure the Indemnified Party’s reputation or future business prospects; (iii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iv) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (v) upon petition by the Indemnified Party an appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim; (vi) the claim is with respect to Taxes (and is not otherwise covered by Section 9.1(j) with respect to which party controls), (vii) the Indemnified Party reasonably believes that the Indemnifying Party lacks the financial resources to satisfy any Losses relating to the claim; or (viii) the Indemnified Party reasonably believes that the Loss relating to the claim could exceed the maximum amount that such Indemnified Party could then be entitled to recover under the applicable provisions of any Loss, at any time during this Section 6;
(iii) if the course Indemnifying Party shall control the defense of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with obtain the prior written consent of the Indemnified Party upon before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, the Indemnified Party’s reasonable request for Party will be obligated to pay any monetary damages, injunctive or other equitable relief will be imposed against the Indemnified Party or such consultation settlement does not expressly and unconditionally release the Indemnified Party from time to time all Liabilities with respect to such claim, suit, action or proceeding. If without prejudice; and
(iv) if the Indemnifying Party assumes is not entitled to, or does not, assume control of such defensedefense pursuant to the preceding provisions of this Section, the Indemnified Party shall control such defense without waiving any right that the Indemnified Party may have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, against the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent for indemnification pursuant to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofthis Section.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Sources: Securities Purchase Agreement (Red White & Bloom Brands Inc.)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies a party to this Agreement (the Indemnified Party "INDEMNIFIED PARTY") with respect to any matter which may give rise to a claim (other than a “Third Tax Claim) for indemnification against another party to this Agreement (the "INDEMNIFYING PARTY") under this Article VII, then the Indemnified Party Claim”shall use reasonable efforts to notify the Indemnifying Party thereof promptly and in any event within ten days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is actually prejudiced thereby.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense of such matter pursuant to paragraph (c) below, defend against the matter in any manner it deems appropriate.
(c) The Indemnifying Party may at any point in time choose to assume the defense of all of such matter, in which event:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party,
(ii) the Indemnified Party may retain separate counsel at its sole cost and expense (except 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, or (y) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party), and
(iii) the Indemnifying Party shall reimburse the Indemnified Party for the reasonable costs of defense or investigation for the period prior to the assumption of the defense.
(d) Assumption of the defense of any matter by the Indemnifying Party shall without further action constitute an irrevocable waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this Article VII.
(e) The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification against without the written consent of the Indemnifying Party under this Section 11Party, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)which consent may not be unreasonably withheld or delayed; provided, however, that failure on if the part Indemnifying Party has failed to provide indemnification required to be provided pursuant to this Article VII for fifteen days after a request therefor, then the Indemnified Party may take any such action without the consent of the Indemnifying Party.
(f) The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the written consent of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent withheld or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofdelayed).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Sources: Asset Purchase Agreement (Handheld Entertainment, Inc.)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify any party (the "Indemnified Party Party") with respect to any matter (a “Third "Third-Party Claim”") that which may give rise to a claim for indemnification against any other party (the "Indemnifying Party Party") under this Section 11Article VIII, then the Indemnified Party shall promptly (and in any event within five (5) business days after receiving written notice of the Third-Party Claim) notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)writing; provided, however, that failure to provide such written notice on the part of the Indemnified Party to notify any Indemnifying Party a timely basis shall not relieve release the Indemnifying Party from any obligation hereunder unless (and then solely of its obligations under this Article VIII except to the extent) extent the Indemnifying Party is thereby materially prejudiced by such failure.
(cb) The Indemnifying Party mayshall, upon receipt of such notice and upon its irrevocably and unconditionally notifying the Indemnified Party in writing that it shall indemnify all Indemnified Parties in respect of such matter, be entitled to participate in or, at the Indemnifying Party's option, assume at its own expenseexpense the defense, participate in the defense of any claim, suit, action appeal or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out settlement of such claim, suit, action or proceeding, and that the Indemnifying Third-Party shall be liable for the entire amount Claim with respect to which such indemnity has been invoked with counsel of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s 's choice (provided that such counsel is reasonably satisfactory to the Indemnified Party), and the Indemnified Party shall fully cooperate with the Indemnifying Party in connection therewith including contesting such Third-Party Claim or making any counterclaim against the person asserting such Third-Party Claim; provided, however, that if the Indemnifying Party assumes the defense, appeal or settlement of such Third-Party Claim, (i) the Indemnifying Party shall thereafter consult with reimburse the Indemnified Party upon for out of pocket expenses incurred by the Indemnified Party’s reasonable request for Party (such consultation from as travel costs, but not internal time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, charges) and (ii) the Indemnified Party shall have the right (but not the obligation) be entitled to participate employ one counsel to represent itself if, in the defense thereof and opinion of counsel to employ counselthe Indemnified Party, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice an actual conflict of counsel, that the representation by the Indemnifying Party’s counsel of both interest exists between the Indemnifying Party and the Indemnified Party would present a conflict in respect of interest, then such Third-Party Claim and in that event the reasonable fees and expenses of such counsel shall be paid by the Indemnifying Party (it being understood that all Indemnified Parties may employ not more than one counsel to represent them at the expense of the Indemnified Party). Any Indemnified Party may employ separate counsel (is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party that it intends to assume the defense, appeal or settlement of such Third-Party Claim, to file any motion, answer or other pleading and take such other action which it shall reasonably deem necessary to protect its interest or that of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party’s consent , provided that, prior to filing such motion, answer or other pleading or taking such other action, the Indemnified Party shall have made reasonable efforts to consult with the Indemnifying Party. Failure by the Indemnifying Party to assume the defense, appeal or settlement of such Third-Party Claim within a reasonable period of time, but in no event more than ten (10) business days after written notice thereof shall have been given to the choice Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of counsel is required, its right to defend such consent not to be unreasonably withheldThird-Party Claim.
(c) to represent or defend it in any such claim, action, suit or proceeding and If the Indemnifying Party shall pay not assume the reasonable fees defense of the Third-Party Claim, the Indemnified Party may defend against such Third-Party Claim in such manner as it deems appropriate, provided that the Indemnified Party shall not settle such Third-Party Claim without providing notice and disbursements a description of one such separate counselthe proposed settlement to the Indemnifying Party. Whether or If the Indemnified Party shall not receive from the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all within ten (10) business days of the Parties hereto shall cooperate in date of notice of such proposed settlement a notice that the defense or prosecution thereof.
(d) Any Indemnifying Party reasonably objects to such proposed settlement or compromise made or caused accompanied by an acknowledgement by the Indemnifying Party that the Third-Party Claim which is subject of the proposed settlement is subject to be made by indemnification pursuant to the provisions of this Article VIII, the Indemnified Party or the Indemnifying Party, as the case may be, of any shall be free to settle such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Third-Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount Claim. If no settlement of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Third-Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it Claim is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejectionmade, the Indemnifying Party shall be obligated promptly reimburse the Indemnified Party for the amount of any final judgment rendered with respect to assume such Third-Party Claim and for the amount of all expenses, legal or otherwise, incurred by the Indemnified Party in the defense against such Third-Party Claim, provided that the Indemnified Party has contested such Third-Party Claim in good faith. If the Indemnifying Party assumes the defense of and full and complete liability and responsibility for such claimany Third-Party Claim, suitthe Indemnifying Party shall not consent to entry of any judgment or enter into any settlement, action other than a judgment or proceeding and any and all Losses in connection therewith in excess settlement involving only the payment of money damages by the Indemnifying Party, without the consent of the amount of unindemnifiable Losses Indemnified Party, which the Indemnified Party would have been obligated to pay under the proposed settlement consent shall not be unreasonably withheld or compromiseunreasonably delayed.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify a Party (the “Indemnified Party Party”) with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against a other Party (the “Indemnifying Party Party”) under this Section 11Article 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, writing; provided that the nature and basis of the claim and the amount thereof, failure to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to so notify any an Indemnifying Party shall not relieve the Indemnifying Party from any obligation of its obligations hereunder unless except to the extent that (and then solely only to the extentextent that) such failure shall have caused the damages for which the Indemnifying Party is thereby materially prejudiced by obligated to be greater than such failuredamages would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder.
(cb) The Indemnifying Party maywill have the right (subject to the limitations below) at any time to assume and thereafter conduct the defense of the Third Party Claim by appointing a recognized and reputable counsel of its choice reasonably satisfactory to the Indemnified Party to be the lead counsel in connection with such defense; provided, at its own expensehowever, prior to the Indemnifying Party assuming control of such defense it shall first verify to the Indemnified Party in writing that such Indemnifying Party shall be fully responsible (with no reservation of any rights) for all liabilities and obligations relating to such claim for indemnification; and provided further, that:
(i) the Indemnified Party shall be entitled to participate in the defense of any claim, suit, action or proceeding such claim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by providing written notice to the Indemnified Party (other than any fees and delivering expenses of such separate counsel that are incurred prior to the Indemnified date the Indemnifying Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out effectively assumes control of such claimdefense which, suitnotwithstanding the foregoing, action or proceeding, and that shall be borne by the Indemnifying Party);
(ii) the Indemnifying Party shall not be liable for the entire amount entitled to assume control of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory (unless otherwise agreed to in writing by the Indemnified Party, ) and shall pay the Indemnifying Party shall thereafter consult with fees and expenses of counsel retained by the Indemnified Party upon if (1) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (2) the Indemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be materially detrimental to or materially injure the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action reputation or proceeding. If future business prospects; (3) the Indemnifying Party assumes such defense, claim seeks an injunction or equitable relief against the Indemnified Party; or (4) the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the has been advised by counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice that a reasonable likelihood exists of counsel, that the representation by the Indemnifying Party’s counsel a conflict of both interest between the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel Party; and
(Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheldiii) to represent or defend it in any such claim, action, suit or proceeding and If the Indemnifying Party shall pay control the reasonable fees and disbursements defense of one such separate counsel. Whether a Third Party Claim, it will not consent to entry of any judgment or not the Indemnifying enter into any settlement of a Third Party chooses Claim or cease to defend or prosecute any such claim, suit, action or proceeding, all claim without the prior written consent of the Parties hereto shall cooperate Indemnified Party unless such judgment or proposed settlement or cessation involves or will result in only the defense payment of money damages and will expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim without prejudice and will not result in or prosecution thereofimpose an injunction or other equitable relief upon the Indemnified Party.
(dc) Any settlement or compromise made or caused to be made by Unless and until an Indemnifying Party assumes the defense of the Third Party Claim as provided in Section 8.4(b) above, however, the Indemnified Party or may defend against the Third Party Claim in any manner it reasonably may deem appropriate; provided that the Indemnified Party may not enter into any settlement of a Third Party Claim without the prior written consent of the Indemnifying Party, as the case may be, of any such claim, suit, action which consent shall not be unreasonably withheld or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisedelayed.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify Fibreboard, on the one hand, or Buyer on the other hand (the notified party is hereinafter referred to as the "Indemnified Party Party") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the other (such other party is hereinafter referred to as the "Indemnifying Party Party") under this Section 1110, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forthpromptly; PROVIDED, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, howeverHOWEVER, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The damaged. Seller hereby agrees that it is defending, and will continue to defend, in accordance with the terms of this Purchase Agreement all litigation and actions pending against Seller or any Acquired Corporation, including, without limitation, the actions described in the Disclosure Schedule. In the event the Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to notifies the Indemnified Party and delivering to within fifteen (15) days after the Indemnified Party a written agreement that has given notice of the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and matter that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume is assuming the defense thereof, provided that (A) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of the Indemnifying Party’s counsel is 's choice reasonably satisfactory to the Indemnified Party, (B) the Indemnified Party may retain separate co-counsel at the Indemnified Party's sole cost and expense (except that the Indemnifying Party shall thereafter consult with will be responsible for the reasonable fees and expenses of the separate co-counsel to the extent the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, concludes reasonably that the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from has an actual conflict of interest with other parties represented by the counsel employed selected by the Indemnifying Party. If, howeveror such counsel otherwise has a conflict in its representation of the Indemnified Party such that representation of the Indemnified Party by such counsel would be inappropriate), and (C) neither the Indemnified Party nor the Indemnifying Party reasonably determines, based upon will consent to the entry of any judgment or enter into any settlement with respect to the matter without the written advice consent of counsel, that the representation by other Party (not to be withheld unreasonably). In the Indemnifying Party’s counsel of both event the Indemnifying Party and does not notify the Indemnified Party would present a conflict within fifteen (15) days after the Indemnified Party has given notice of interestthe matter that the Indemnifying Party is assuming the defense thereof, then such the Indemnified Party may employ separate counsel (Indemnifying Party’s consent to defend against, or enter into any settlement with respect to, the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it matter in any such claim, action, suit or proceeding and manner it reasonably may deem appropriate (with the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and bearing responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromiseAdverse Consequences as set forth herein).
Appears in 1 contract
Sources: Stock Purchase and Indemnification Agreement (Fibreboard Corp /De)
Matters Involving Third Parties. (a) This Section 7. 5. s subject to the provisions and limitations of Section 7.3.1, 7.3.2, 7.3.3 and 7.3.4.
7.5.1 For purposes of this Section 11.3, 7.5. a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) 7.5.2 If any third party shall notify the Indemnified Party with respect to any matter (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11Article 7, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) 7.5.3 The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 Article 7 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) 7.5.4 Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 7.4.6 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party Party") under this Section 11Article VII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)writing; provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(cb) The Indemnifying Party may, (i) at its own expense, participate in the defense of any claim, suit, action or proceeding by providing and (ii) upon (x) written notice to the Indemnified Party and (y) delivering to the Indemnified Party of a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 7.1 or 7.2 for all Losses arising out of such claim, suit, action or proceeding, proceeding and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that (1) the Indemnifying Party’s 's counsel is reasonably satisfactory to the Indemnified Party, and (2) the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s 's reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s 's counsel of both the Indemnifying Party and the Indemnified Party would present such counsel with a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s 's consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(dc) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 7.4 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ ' notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that which may give rise to a claim for indemnification against the other Party (the "Indemnifying Party Party") under this Section 118, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in writing; which notice shall provide reasonable detail, the nature detail and basis of specificity as to the claim or proceeding and the amount thereof, to the extent known, and any other relevant documentation of damages sought in the possession of the Indemnified Party (a “Notice of Claim”)such claim or proceeding; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby materially prejudiced by such failureprejudiced.
(cii) The Indemnifying If a Third Party mayClaim is made against an Indemnified Party, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for entitled to participate in the entire amount of any Lossdefense thereof and, at any time during the course of any such claimif it so chooses, suit, action or proceeding, to assume the defense thereof, provided that thereof with counsel selected by the Indemnifying Party’s counsel is reasonably satisfactory . Should the Indemnifying Party so elect to assume the Indemnified Partydefense of a Third Party Claim, and the Indemnifying Party shall thereafter consult with not be liable to the Indemnified Party upon for any legal expenses subsequently incurred by the Indemnified Party’s reasonable request for such consultation from time to time Party in connection with respect to such claim, suit, action or proceedingthe defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, it being understood that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay control such defense. The Indemnifying Party shall be liable for the reasonable fees and disbursements expenses of one such separate counselcounsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). Whether or not If the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceedinga Third Party Claim, all of the Parties hereto indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(diii) Any settlement Notwithstanding clause (ii) above, (x) the Indemnified Party may, by prior written notice to the Indemnifying Party, assume the defense of any Third Party Claim if the Indemnified Party shall have been advised by counsel that there are one or compromise made more legal defenses available to the Indemnified Party which are different from or caused in addition to those available to the Indemnifying Party, and, in the reasonable opinion of the Indemnified Party and its counsel, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be made in conflict with those of the Indemnifying Party, or (y) if a Third Party claim seeks injunctive or equitable relief in addition to monetary damages for which it would be entitled to indemnification under this Agreement the Indemnified Party may, by prior written notice to the Indemnifying Party, assume the right to defend the injunctive or equitable relief claim (but not the monetary damages claims); provided, however, if the Indemnified Party assumes defense of such injunctive or equitable relief claim, the Indemnifying Party, subject to the provisions of this Section 8, shall be responsible for the reasonable fees and expenses of counsel employed by the Indemnified Party in defending, compromising or settling such claim; provided that the Indemnifying Party, as the case may be, of 's liability with respect to any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated subject to assume Section 8(d)(iv) below. In the defense event of a Third Party injunctive or equitable relief claim that would fall under both subsections (x) and full and complete liability and responsibility for such claim(y) of this Section 8(d)(iii), suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisesubsection (y) shall control.
Appears in 1 contract
Sources: Asset Purchase Agreement (Roxio Inc)
Matters Involving Third Parties. (a) For purposes If, in the case of this Section 11.3, any claim asserted by a third party against which indemnification may any party to this Agreement (the "INDEMNIFIED PARTY"), notice shall be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify given by the Indemnified Party with respect to the party required to provide indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party has actual knowledge of any matter (a “Third Party Claim”) that claim as to which indemnity may give rise to a claim for indemnification against the Indemnifying Party under this Section 11be sought, then and the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve permit the Indemnifying Party from any obligation hereunder unless (and then solely at the expense of such Indemnifying Party) to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in assume the defense of any claimclaim or any litigation resulting therefrom, suit, action or proceeding by providing written notice to provided that (i) the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 counsel for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party who shall conduct the defense of such claim or litigation shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may participate in such defense at such Indemnified Party's expense, and (iii) the omission by any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of the indemnification obligation under this Agreement except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and such Indemnifying Party is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Indemnified Party, no Indemnifying Party, in the defense of any such claim or litigation, shall thereafter consult with consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party upon or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party’s reasonable request for such consultation Party of a release from time to time all liability with respect to such claim, suit, action claim or proceedinglitigation. If In the event that the Indemnified Party shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the Indemnifying Party assumes might be expected to affect adversely the Indemnified Party's tax liability or the ability of the Indemnified Party to conduct its business, or that the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect of such defenseclaim or any litigation relating thereto, the Indemnified Party shall have the right (but not at all times to take over and assume control over the obligation) defense, settlement, negotiations or litigation relating to participate in any such claim at the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by sole cost of the Indemnifying Party. If, howeverprovided that if the Indemnified Party does so take over and assume control, the Indemnifying Indemnified Party reasonably determines, based upon shall not settle such claim or litigation without the written advice consent of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and . In the event that the Indemnifying Party does not accept the defense of any matter as above provided, the Indemnified Party shall have the full right to defend against any such claim or demand and shall be entitled to settle or agree to pay the reasonable fees and disbursements of one in full such separate counselclaim or demand. Whether or not In any event, the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of and the Parties hereto Indemnified Party shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action claim or proceeding of the kind referred litigation subject to in this Section 11.3 shall also be binding upon 10.3 and the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court records of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss each shall be imposed on available to the Indemnified Party as a result of other with respect to such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisedefense.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify notifies a party entitled to indemnification under this Article VII (the “Indemnified Party Party”) with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the Indemnifying Party another party to this Agreement under this Section 11Article VII (the “Indemnifying Party”), then the Indemnified Party shall promptly use reasonable efforts to notify each the Indemnifying Party thereof promptly and in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party event within ten (10) calendar days after receiving any written notice from a “Notice of Claim”)third party; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (unless, and then solely to the extent) extent that, the Indemnifying Party is thereby materially actually prejudiced by thereby.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party’s rights to assume the defense of such failurematter pursuant to paragraph (c) below, defend against the matter in any manner it deems reasonably appropriate.
(c) The Indemnifying Party may, may at its own expense, participate any point in time choose to assume the defense of any claimall of such matter, suit, action or proceeding by providing written notice in which event:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party and delivering to Party;
(ii) the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, may retain separate counsel at its sole cost and expense (except that the Indemnifying Party shall be liable responsible for the entire amount reasonable fees and expenses of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s one separate co-counsel is reasonably satisfactory for all Indemnified Parties to the extent the Indemnified PartyParty is advised, and in writing by its counsel, that either (x) the counsel the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present has selected has a conflict of interest, then such or (y) there are legal defenses available to the Indemnified Party may employ separate counsel (that are different from or additional to those available to the Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld); and
(iii) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay reimburse the Indemnified Party for the reasonable fees and disbursements costs of one such separate counsel. Whether defense or not investigation for the Indemnifying Party chooses period prior to defend or prosecute any such claim, suit, action or proceeding, all the assumption of the Parties hereto shall cooperate in the defense or prosecution thereofdefense.
(d) Any settlement or compromise made or caused to be made Assumption of the defense of any matter by the Indemnifying Party shall without further action constitute an irrevocable waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this Article VII.
(e) The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the written consent of the Indemnifying Party, as the case which consent may be, of any such claim, suit, action not be unreasonably withheld or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the delayed.
(f) The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the Indemnified Party, as the case may be, plaintiff or claimant in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on matter releases the Indemnified Party as a result from all liability with respect thereto, without the written consent of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated (not to pay under the proposed settlement be unreasonably withheld or compromisedelayed).
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify make or assert a claim against any Party (the "Indemnified Party Party") with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party Party") under this Section 119.1 or 9.2, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)promptly; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any liability or obligation hereunder under this Agreement unless (and then solely to the extent) the Indemnifying Party is thereby materially damaged or prejudiced by thereby. In the case of any such failure.
(c) The claim pursuant to which only the recovery of a sum of money is being sought and the Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to (i) enters into an agreement with the Indemnified Party (in form and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible (with no reservation of any rights other than the right to be subrogated to the rights of the Indemnified Party) for all losses relating to such claim and unconditionally guarantees the payment and performance of any liability which may arise with respect to such claim or the facts giving rise to such claim for indemnification, and (ii) furnishes the Indemnified Party with evidence that the Indemnifying Party, in the Indemnified Party's reasonable judgment, is and will be able to satisfy any such liability, the Indemnifying Party may, by giving written notice to the Indemnified Party, assume the defense thereof. In such case, (A) the Indemnifying Party will defend the Indemnified Party against such matter with counsel of its choice satisfactory to the Indemnified Party and (B) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of any separate counsel to the Indemnified Party incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense). In the event that the Indemnifying Party is precluded from assuming control of the defense of a claim pursuant to the terms of this Section 9.3, the Indemnifying Party may retain separate co-counsel at its sole cost and expense to participate in such defense and, in any event the Indemnified Party shall (i) provide the Indemnifying Party with all material information requested by such party relating to the defense of such claim, (ii) confer with the Indemnifying Party as to the most cost-effective manner in which to defend such claim and (iii) use its reasonable efforts to minimize the cost of defending such claim. The Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to such matter without the written consent of the Indemnifying Party (not to be withheld unreasonably), and the Indemnifying Party shall thereafter consult with will not consent to the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time entry of any judgment or enter into any settlement with respect to such claim, suit, action or proceeding. If matter without the Indemnifying Party assumes such defense, written consent of the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofwithheld unreasonably).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Masada Security Holdings Inc)
Matters Involving Third Parties. (a) For purposes of this In the event that an Indemnified Party desires to make a claim against an Indemnifying Party under Section 11.3, a party 10.8 in connection with any Proceeding at any time instituted against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “or made upon an Indemnified Party.”
(b) If Party by any third party shall notify the for which an Indemnified Party with respect to any matter may seek indemnification hereunder (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11), then the such Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature of such Third Party Claim and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice Party’s claim of Claim”); provided, however, that indemnification with respect thereto. The failure on to so notify the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation of its obligations hereunder unless (and then solely except to the extentextent such failure adversely prejudices the Indemnifying Party’s ability to defend such claim. The Indemnifying Party shall have thirty (30) days after receipt of such notice to notify the Indemnified Party in writing if it has elected to undertake, conduct and control, through counsel of their own choosing (subject to the consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed) and at its sole risk and expense, the good faith settlement or defense of such Third Party Claim, and the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection therewith; provided: (a) all settlements require the prior reasonable consultation with the Indemnified Party and the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed, and (b) the Indemnified Party shall be entitled to participate in such settlement or defense through counsel chosen by the Indemnified Party, provided that the fees and expenses of such counsel shall be borne by the Indemnified Party. So long as the Indemnifying Party is thereby materially prejudiced by contesting any such failure.
(c) The Indemnifying Third Party mayClaim in good faith, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action shall not pay or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of settle any such claimThird Party Claim; provided, suithowever, action or proceeding, assume that notwithstanding the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defenseforegoing, the Indemnified Party shall have the right (but not the obligation) to participate pay or settle any such Third Party Claim at any time, provided that in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed such event they shall waive any right of indemnification therefor by the Indemnifying Party. If, however, If the Indemnifying Party reasonably determinesdoes not make a timely election to undertake the good faith defense or settlement of the Third Party Claim as aforesaid, based upon written advice of counsel, that the representation by or if the Indemnifying Party’s counsel Party fails to proceed with the good faith defense or settlement of both the matter after making such election, then, in either such event, the Indemnified Party shall have the right to contest, settle or compromise (provided that all settlements or compromises require the prior reasonable consultation with the Indemnifying Party and the Indemnified Party would present a conflict prior written consent of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as which consent shall not be unreasonably withheld, conditioned or delayed) the case may beThird Party Claim at their exclusive discretion, of any such claim, suit, action or proceeding at the risk and expense of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that which may give rise to a claim for indemnification against the other Party (the "Indemnifying Party Party") under this Section 115, then the Indemnified Party shall promptly (and in any event within 15 days or with longer advance notice to enable the defense of the claim) notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”)writing; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party thereby is prejudiced, including prejudiced in the defense of such Third Party Claim.
(and then solely ii) The Indemnifying Party will have the right to cooperate in the defense of the Indemnified Party against the Third Party Claim with counsel of its choice satisfactory to the extentIndemnified Party so long as (A) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to notifies the Indemnified Party and delivering to in writing within 10 business days after the Indemnified Party a written agreement that has given notice of the Indemnified Third Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and Claim that the Indemnifying Party shall be liable for will indemnify the entire amount Indemnified Party pursuant to the provisions of any Lossthis Section 5 from and against Adverse Consequences, at any time during and (B) if either of the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that Sellers is the Indemnifying Party’s counsel , then the Escrow Amount is reasonably satisfactory sufficient to defend against the Indemnified Party, Third Party Claim and fulfill the Seller's indemnification obligations hereunder.
(iii) The Buyer shall cause Syntech and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent Subsidiaries not to be unreasonably withheld) to represent make or defend it in accept any such settlement of any claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 5(e), nor shall also make or permit to be binding upon made acquiescence thereto, without the Indemnifying Party prior written consent of the Sellers, which consent shall be communicated by the Sellers in writing within 10 business days from the date of receipt of any written proposal and shall not be withheld without reasonable justification. If the Sellers refuse a settlement proposal submitted by the Buyer without any reasonable justification, they shall be bound to indemnify the Buyer for the full amount claimed, it being understood that the Buyer may proceed in any event to a settlement if this is required by the overriding interests of preserving the business interests of SRT, Syntech, or its Subsidiaries (including the likelihood of establishing a precedential custom of practice adverse to the continuing business interests of the Indemnified Party), in which case the amount of the indemnity will be determined through arbitration pursuant to Section 8(b) hereof. If a firm offer is made to settle any matter giving rise to the Sellers indemnification hereunder which the Sellers, but not the Buyer, are willing to accept, then the Buyer and/or Syntech or the relevant Subsidiary (as the case may be) shall be free not to enter into such settlement and to commence or continue litigation at their own expense, in and the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in Sellers liability hereunder shall be limited to the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisesettlement.
Appears in 1 contract
Sources: Stock Purchase Agreement (McWhorter Technologies Inc /De/)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, If a Third Party notifies any party against which indemnification may be sought is referred to as hereto (the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(b"INDEMNIFIED PARTY") If any third party shall notify the Indemnified Party with respect to any matter (a “Third Party Claim”) that which may give rise to a claim for indemnification against the Indemnifying Party other party hereto (the "INDEMNIFYING PARTY") under this Section 11ARTICLE X, then the Indemnified Party shall promptly use reasonable efforts to notify each the Indemnifying Party thereof promptly and in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party event within ten (10) days after receiving any written notice from a “Notice of Claim”)third party; provided, however, that failure no delay on the part of the Indemnified Party to notify any in notifying the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (unless, and then solely to the extent) extent that, the Indemnifying Party is thereby materially actually and substantially prejudiced by thereby.
(b) Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense of such failurematter pursuant to paragraph (c) below, defend against the matter in any reasonable manner it deems appropriate. The Indemnified Party shall keep the Indemnifying Party informed as to the status of such actions.
(c) The Indemnifying Party may, may at its own expense, participate any point in time choose to assume the defense of any claim, suit, action or proceeding by providing written notice all of such matter if the Indemnifying Party provides evidence reasonably satisfactory to the Indemnified Party and delivering of its ability to provide the indemnification required pursuant to this ARTICLE X.
(d) Upon assumption of the defense by the Indemnifying Party:
(i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party a written agreement that Party;
(ii) the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, may retain separate counsel at its sole cost and expense (except that the Indemnifying Party shall be liable responsible for the entire amount fees and expenses of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s one separate co-counsel is reasonably satisfactory for all Indemnified Parties to the extent the Indemnified PartyParty is advised, and in writing by its outside counsel, that either (x) the counsel the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present has selected has a conflict of interest, then such or (y) there are legal defenses available to the Indemnified Party may employ separate counsel (that are different from or additional to those available to the Indemnifying Party’s ); and
(iii) the Indemnified Party shall make available to the Indemnifying Party and its attorneys and accountants all books and records of the Indemnified Party relating to such proceedings or litigation and the parties agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action or proceeding.
(e) Assumption of the defense of any matter by the Indemnifying Party shall without further action constitute an irrevocable waiver by the Indemnifying Party of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this ARTICLE X.
(f) The Indemnified Party shall not consent to the choice entry of counsel is requireda judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the written consent of the Indemnifying Party, such which consent may not be unreasonably withheld or delayed.
(g) The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the written consent of the Indemnified Party (not to be unreasonably withheld) to represent withheld or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofdelayed).
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.
Appears in 1 contract
Sources: Asset Purchase Agreement (Brookdale Senior Living Inc.)
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be If any Party entitled to indemnification is referred be indemnified pursuant to as the Section 7.02 (an “Indemnified Party.”
(b) If receives notice of the assertion of any third party shall notify the Indemnified Party with claim in respect to any matter of Adverse Consequences (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11), then the such Indemnified Party shall promptly notify each give the party who may become obligated to provide indemnification hereunder (the “Indemnifying Party thereof in writing setting forth, Party”) written notice describing such claim or fact in reasonable detail, detail (the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”) promptly (and in any event within ten (10) Business Days after receiving any written notice from a third party); provided. The Notice of Claim must, howeverat a minimum, include the amount, if known, or if not known, an estimate of the foreseeable amount of claimed Adverse Consequences, and a description of the basis for that Third Party Claim. The failure on the part of by the Indemnified Party to notify any timely provide a Notice of Claim to the Indemnifying Party shall not relieve the Indemnifying Party from of any obligation hereunder unless (and then solely liability, except to the extentextent that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to provide timely notice hereunder. (b) In the event any Indemnifying Party notifies the Indemnified Party within twenty (20) Business Days after the Indemnifying Party has received a Notice of Claim that the Indemnifying Party is assuming the defense thereof: (i) the Indemnifying Party is thereby materially prejudiced by such failure.
will defend the Indemnified Party against the matter with counsel of its choice, subject to the consent of the Indemnified Party, which shall not be unreasonably withheld, and shall have the right to conduct and control the defense of the Third Party Claim; (ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest); (iii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party; and (iv) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto. (c) The In the event the Indemnifying Party maydoes not notify the Indemnified Party within twenty (20) Business Days after the Indemnifying Party receives the Notice of Claim that the Indemnifying Party is assuming the defense thereof, at its own expensethen the Indemnified Party shall have the right, participate in subject to the provisions of this Article, to undertake the defense, compromise or settlement of such claim for the account of the Indemnifying Party. Unless and until the Indemnifying Party assumes the defense of any claim, suit, action or proceeding by providing written notice the Indemnifying Party shall advance to the Indemnified Party any of its reasonable attorneys’ fees and delivering to other costs and expenses incurred in connection with the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course defense of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If Each Indemnified Party shall agree in writing prior to any such advance that, in the event it receives any such advance, such Indemnified Party shall reimburse the Indemnifying Party assumes for such defensefees, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof costs and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent expenses to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend extent that it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consentdetermined that it was not entitled to indemnification under this Article 7. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise.19
Appears in 1 contract
Sources: Asset Purchase Agreement
Matters Involving Third Parties. If the Indemnified Party shall notify the Indemnifying Party of any claim or demand pursuant to Sections 8.2, 8.3 or 8.4 asserted by a third party, the Indemnifying Party shall have the right to (a) For purposes of this Section 11.3, a party employ counsel reasonably acceptable to the Indemnified Party to defend any such claim or demand asserted against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
, (b) If control and conduct any third party proceedings or negotiations in connection therewith and necessary or appropriate to defend the Indemnified Party and (c) to take all other steps or proceedings to settle or defend any such claims; provided that no Indemnifying Party shall, without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, effect any settlement or compromise, or consent to the entry of any judgment, with respect to any claim unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnified Party from any and all liability with respect to such claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of, any Indemnified Party. The Indemnifying Party shall notify the Indemnified Party in writing, as promptly as possible after receipt of the notice described in the foregoing sentence, of its election to assert any of its rights to defend any such claim or demand and, after notice of such election, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. If the Indemnifying Party does not elect to assume the defense of any such claim or demand, (A) the Indemnified Party may defend against any such claim in such manner as it may deem reasonably appropriate, at the cost of the Indemnifying Party; provided that the Indemnified Party shall not, without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, effect any settlement or compromise, or consent to the entry of any judgment, with respect to any matter such claim; and (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extentB) the Indemnifying Party is thereby materially prejudiced by shall have the right to participate in such failure.
(c) The Indemnifying Party maydefense, including with counsel of its choice, at its own expense, participate in the defense of any claim, suit, action or proceeding by providing written notice to and the Indemnified Party and delivering to shall reasonably cooperate with the Indemnifying Party in connection with such participation. In all cases the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time keep each other reasonably informed as to time with respect to such all matters concerning any third party claim, suit, action or proceeding. If shall promptly notify the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate other party in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice writing of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses significant developments relating thereto and shall cooperate fully with and assist each other in connection therewith in excess of with the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed defense, negotiation or settlement or compromisethereof.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be entitled to indemnification is referred to as the “Indemnified Party.”
(bi) If any third party shall notify any Person entitled to indemnification hereunder (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") that may is reasonably expected to give rise to a claim for indemnification against the General Partner or Subscriber, as applicable (the "Indemnifying Party Party") under this Section 11Thirteenth, then the Indemnified Party shall promptly (and in any event within ten Business Days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party writing. Failure to notify any the Indemnifying Party shall not relieve the Indemnifying Party from of any obligation hereunder unless (and then solely liability that it may have to the extent) Indemnified Party, except to the Indemnifying Party extent the defense of such claim is thereby materially prejudiced by the Indemnified Party's failure to give such failurenotice.
(cii) The Indemnifying Party may, at its own expense, participate in shall have the right to assume and thereafter conduct the defense of any claim, suit, action or proceeding by providing written notice the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party and delivering to the Indemnified Indemnifying Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out shall have full control of such claimdefense and proceedings, suitincluding any compromise or settlement thereof; provided, action or proceedinghowever, and that the Indemnifying Party shall be liable for not consent to the entire amount entry of any Lossjudgment or enter into any settlement with respect to the Third Party Claim which provides for or results in any payment by or Liability of the Indemnified Party of or for any damages or other amount, at any time during the course encumbrance on any property of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and any finding of responsibility or liability on the Indemnifying Party shall thereafter consult with part of the Indemnified Party or any sanction or injunction of, restriction upon the conduct of any business by, or other equitable relief upon the Signature Page to Subscription Agreement Indemnified Party’s reasonable request for such consultation from time Party without the prior written consent of the Indemnified Party (not to time with respect to such claim, suit, action or proceedingbe unreasonably withheld). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the obligation) to participate in and thereafter conducts the defense thereof and to employ counsel, at its own expense, separate from of the counsel employed by the Indemnifying Party. If, howeverThird Party Claim, the Indemnifying Party reasonably determines, based upon written advice will not have to pay the cost of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon the Indemnifying Party or the Indemnified Party, as . Notwithstanding the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejectionforegoing, the Indemnifying Party shall not be obligated entitled to assume defend or control the defense of and full and complete liability and responsibility for such claim, suit, action any Third Party Claim if (I) the Third Party Claim relates to or proceeding and any and all Losses arises in connection therewith with any criminal proceeding, action, indictment, allegation or investigation, or in excess the case of any non-criminal Proceeding by a Governmental Body that would reasonably be expected to materially and adversely affect the operations or conduct of the amount of unindemnifiable Losses which Partnership; (II) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party; (III) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim; (IV) the Indemnified Party would have been obligated reasonably believes that the Losses relating to pay such Third Party Claim could exceed the maximum amount that such Indemnified Party could then be entitled to recover under the proposed applicable provisions of this Section Thirteenth; or (V) the Indemnifying Party does not provide the Indemnified Party with reasonable evidence that the Indemnifying Party has the financial resources to defend such Third Party Claim and to fulfill its indemnification obligations under this Section Thirteenth.
(iii) Unless and until the Indemnifying Party assumes the defense of the Third Party Claim as provided in Section, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. After the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party may participate in such defense with counsel of its choosing at the Indemnified Party's expense.
(iv) In no event shall the Indemnified Party consent to the entry of any judgment or enter into any settlement or compromisewith respect to the Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Subscription Agreement
Matters Involving Third Parties. (a) For purposes If, in the case of this Section 11.3, any claim asserted by a third party against which any party to this Agreement (the “Indemnified Party”), notice shall be given by the Indemnified Party to the party required to provide indemnification may be sought is referred to as (the “Indemnifying Party” and the party ”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be entitled to indemnification is referred to as the “Indemnified Party.”
(b) If any third party shall notify the Indemnified Party with respect to any matter (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11sought, then and the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing setting forth, in reasonable detail, the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”); provided, however, that failure on the part of the Indemnified Party to notify any Indemnifying Party shall not relieve permit the Indemnifying Party from any obligation hereunder unless (and then solely at the expense of such Indemnifying Party) to the extent) the Indemnifying Party is thereby materially prejudiced by such failure.
(c) The Indemnifying Party may, at its own expense, participate in assume the defense of any claimclaim or any litigation resulting therefrom, suit, action or proceeding by providing written notice to provided that (i) the Indemnified Party and delivering to the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 counsel for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party who shall conduct the defense of such claim or litigation shall be liable for the entire amount of any Loss, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may participate in such defense at such Indemnified Party’s expense, and (iii) the omission by any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of the indemnification obligation under this Agreement except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and such Indemnifying Party is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Indemnified Party, no Indemnifying Party, in the defense of any such claim or litigation, shall thereafter consult with consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party upon or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. In the event that the Indemnified Party shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the Indemnifying Party might be expected to affect adversely the Indemnified Party’s reasonable request for such consultation from time tax liability or the ability of the Indemnified Party to time conduct its business, or that the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with respect one or more of those that may be available to such claim, suit, action or proceeding. If the Indemnifying Party assumes in respect of such defenseclaim or any litigation relating thereto, the Indemnified Party shall have the right (but not at all times to take over and assume control over the obligation) defense, settlement, negotiations or litigation relating to participate in any such claim at the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by sole cost of the Indemnifying Party. If, howeverprovided that if the Indemnified Party does so take over and assume control, the Indemnifying Indemnified Party reasonably determines, based upon shall not settle such claim or litigation without the written advice consent of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and . In the event that the Indemnifying Party does not accept the defense of any matter as above provided, the Indemnified Party shall have the full right to defend against any such claim or demand and shall be entitled to settle or agree to pay the reasonable fees and disbursements of one in full such separate counselclaim or demand. Whether or not In any event, the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of and the Parties hereto Indemnified Party shall cooperate in the defense or prosecution thereof.
(d) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action claim or proceeding of the kind referred litigation subject to in this Section 11.3 shall also be binding upon 10.3 and the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court records of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss each shall be imposed on available to the Indemnified Party as a result of other with respect to such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromisedefense.
Appears in 1 contract
Matters Involving Third Parties. (a) For purposes of this Section 11.3, a party against which indemnification may be sought is referred to as the “Indemnifying Party” and the party which may be If any Party entitled to indemnification is referred be indemnified pursuant to as the Section 7.02 (an “Indemnified Party.”
(b) If receives notice of the assertion of any third party shall notify the Indemnified Party with claim in respect to any matter of Adverse Consequences (a “Third Party Claim”) that may give rise to a claim for indemnification against the Indemnifying Party under this Section 11), then the such Indemnified Party shall promptly notify each give the party who may become obligated to provide indemnification hereunder (the “Indemnifying Party thereof in writing setting forth, Party”) written notice describing such claim or fact in reasonable detail, detail (the nature and basis of the claim and the amount thereof, to the extent known, and any other relevant documentation in the possession of the Indemnified Party (a “Notice of Claim”) promptly (and in any event within ten (10) Business Days after receiving any written notice from a third party); provided. The Notice of Claim must, howeverat a minimum, include the amount, if known, or if not known, an estimate of the foreseeable amount of claimed Adverse Consequences, and a description of the basis for that Third Party Claim. The failure on the part of by the Indemnified Party to notify any timely provide a Notice of Claim to the Indemnifying Party shall not relieve the Indemnifying Party from of any obligation hereunder unless (and then solely liability, except to the extentextent that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to provide timely notice hereunder.
(b) In the event any Indemnifying Party notifies the Indemnified Party within twenty (20) Business Days after the Indemnifying Party has received a Notice of Claim that the Indemnifying Party is assuming the defense thereof: (i) the Indemnifying Party is thereby materially prejudiced by such failurewill defend the Indemnified Party against the matter with counsel of its choice, subject to the consent of the Indemnified Party, which shall not be unreasonably withheld, and shall have the right to conduct and control the defense of the Third Party Claim; (ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest); (iii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party; and (iv) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto.
(c) The In the event the Indemnifying Party maydoes not notify the Indemnified Party within twenty (20) Business Days after the Indemnifying Party receives the Notice of Claim that the Indemnifying Party is assuming the defense thereof, at its own expensethen the Indemnified Party shall have the right, participate in subject to the provisions of this Article, to undertake the defense, compromise or settlement of such claim for the account of the Indemnifying Party. Unless and until the Indemnifying Party assumes the defense of any claim, suit, action or proceeding by providing written notice the Indemnifying Party shall advance to the Indemnified Party any of its reasonable attorneys’ fees and delivering to other costs and expenses incurred in connection with the Indemnified Party a written agreement that the Indemnified Party is entitled to indemnification pursuant to Section 11 for all Losses arising out of such claim, suit, action or proceeding, and that the Indemnifying Party shall be liable for the entire amount of any Loss, at any time during the course defense of any such claim, suit, action or proceeding, assume the defense thereof, provided that the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, and the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding. If Each Indemnified Party shall agree in writing prior to any such advance that, in the event it receives any such advance, such Indemnified Party shall reimburse the Indemnifying Party assumes for such defensefees, the Indemnified Party shall have the right (but not the obligation) to participate in the defense thereof costs and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If, however, the Indemnifying Party reasonably determines, based upon written advice of counsel, that the representation by the Indemnifying Party’s counsel of both the Indemnifying Party and the Indemnified Party would present a conflict of interest, then such Indemnified Party may employ separate counsel (Indemnifying Party’s consent expenses to the choice of counsel is required, such consent extent that it shall be determined that it was not entitled to be unreasonably withheld) to represent or defend it in any such claim, action, suit or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of one such separate counsel. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereofindemnification under this Article 7.
(d) Any settlement or compromise made or caused to be made by In the Indemnified Party or the Indemnifying Party, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in this Section 11.3 shall also be binding upon event that the Indemnifying Party or undertakes the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise, provided that no obligation, restriction or Loss shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party will give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise defense of any claim, suit, action or proceeding it is defending, during which time the Indemnifying Party may reject will keep the Indemnified Party advised as to all material developments in connection with such proposed settlement claim, including, but not limited to, promptly furnishing the Indemnified Party with copies of all material documents filed or compromise; provided that from and after such rejection, served in connection therewith.
(e) The Indemnifying Party's liability for all Third Party Claims shall be subject to the following limitations: the Indemnifying Party shall be obligated to assume the defense of and full and complete have no liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess claims until the aggregate amount of the amount of unindemnifiable Losses which the Indemnified Party would have been obligated to pay under the proposed settlement or compromiseclaim incurred shall exceed One Thousand Dollars ($1000.00).
Appears in 1 contract
Sources: Asset Purchase Agreement (SilverSun Technologies, Inc.)