Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts that could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee under this Agreement (for the avoidance of doubt, excluding any Tax Claim), is asserted or sought to be collected by a Person or Government Entity who is not a Party or an Affiliate thereof (a “Third-Party Claim”), the Indemnitee shall notify the Indemnitor in writing of such Third-Party Claim (a “Notice of Claim”) as promptly as practicable; provided, however, that a failure or delay by an Indemnitee to provide a Notice of Claim as promptly as practicable shall not affect the rights or obligations of such Indemnitee unless the Indemnitor shall have been materially prejudiced as a result of such failure or delay. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) specify in reasonable detail, as applicable, each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated Loss and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled under this Agreement. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Party Claim, if any, and any other documents evidencing such Third-Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of any claim for indemnity by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to, and copies of, information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters subject the confidentiality obligations set forth in Section 4.05. (b) The Indemnitor shall have the right, but not the obligation, to assume the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third-Party Defense”) by providing written notice of such assumption to the Indemnitee within sixty (60) days following delivery of the Notice of Claim provided, that counsel for the Indemnitor who shall conduct the Third-Party Defense shall be reasonably satisfactory to the Indemnitee. If the Indemnitor assumes the Third- Party Defense in accordance with this Agreement, (i) the Indemnitee may retain separate cocounsel at its sole cost and expense and participate in the defense of the Third-Party Claim, but the Indemnitor 114399-0014/143865664.11 shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or 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 Indemnitor, and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement provides for equitable or other non-monetary relief without the prior written consent of the Indemnitee. The Parties will use their commercially reasonable efforts to minimize Losses from Third-Party Claims to the extent required by, and in accordance with, applicable Law, and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto subject to the confidentiality obligations as set forth in Section 4.05. Whether or not the Indemnitor has assumed the Third-Party Defense, any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent shall not be determinative of the amount of Losses relating to such matter. (c) In the event that the Indemnitee shall in good faith determine that with respect to any Third-Party Claim subject to indemnification hereunder or any proposed settlement of any such Third-Party Claim that such Third-Party Claim may impair any Permits that Indemnitee requires to serve as a federally registered investment adviser, broker-dealer/principal underwriter for mutual funds, or commodity pool operator or to be registered as an investment company or such other similar regulated capacity as is deemed material to its business, the Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or Legal Proceeding relating to any such Third-Party Claim at the sole cost of the Indemnitor, provided, that if the Indemnitee does so take over and assume control, the Indemnitee shall not settle such Third-Party Claim without the written consent of the Indemnitor. If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense, at Indemnitee’s sole cost and expense, upon delivery of notice to such effect to the Indemnitor; provided, however, that the Indemnitor (i) shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof, (ii) may at any time thereafter assume the Third-Party Defense, in which event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third-Party Defense, and (iii) will not be obligated to indemnify the Indemnitee under this Agreement for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent.
Appears in 1 contract
Sources: Transaction Agreement (Federated Investors Inc /Pa/)
Indemnification Procedure for Third Party Claims. (a) In Other than in respect of Taxes, which shall be governed by Section 6.7, in the event that any claim or demand, or other circumstance or state of facts that could would reasonably be expected to give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee under this Agreement (for the avoidance of doubt, excluding any Tax Claim), hereunder is asserted or sought to be collected collected, in each case, in writing, by a Person or Government Entity who is not a Party or an Affiliate thereof third party (a “Third-Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, notify the Indemnitor in writing of such Third-Party Claim (a “Notice of Claim”) as promptly as practicable); provided, however, that a failure or delay by an Indemnitee to provide a Notice timely notice consistent with the requirements of Claim as promptly as practicable this Section 9.4(a) shall not affect the rights or obligations of such Indemnitee unless except to the Indemnitor shall have been materially prejudiced as a result of extent such failure or delayresults in material prejudice to the Indemnifying Party with respect to such Third-Party Claim. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, Agreement (if applicable) and (ii) specify in reasonable detail, as applicable, detail each individual item of Loss included in the amount so statedstated (taking into account the information then known to the Indemnitee), the date such item was paid or properly accruedaccrued (if applicable), the basis for any anticipated Loss and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled under this Agreementhereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Party Claim, if any, and any other available documents evidencing such Third-Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of any claim for indemnity by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to, and copies of, information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters subject the confidentiality obligations set forth in Section 4.05.
(b) The Indemnitor shall have the right, but not the obligation, upon notice delivered to the Indemnified Party, to assume the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Defense”) by providing written notice of such assumption to the Indemnitee within sixty (60) days following delivery of the Notice of Claim provided, ); provided that counsel for the Indemnitor who shall conduct the not be entitled to undertake a Third-Party Defense Defense, and the Indemnitor shall be reasonably satisfactory pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if (A) the claim or demand relates to or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement action, (B) the claim or demand seeks an injunction or equitable relief against the Indemnitee or any of its Related Parties or (C) there are legal defenses available to the IndemniteeIndemnified Party that are different from or additional to those available to the Indemnifying Party. If the Indemnitor assumes the Third- Third-Party Defense in accordance with this Agreementherewith, (i) the Indemnitee may retain separate cocounsel co-counsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Party Claim, but the Indemnitor 114399-0014/143865664.11 shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or 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 Indemnitor, and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief relief, (y) does not contain a full and unconditional release of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, without the prior written consent of the IndemniteeIndemnitee (not to be unreasonably withheld, conditioned or delayed). The Parties will use their commercially reasonable efforts to minimize Losses from Third-Party Claims to the extent required by, and in accordance with, applicable Law, and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto subject to the confidentiality obligations as set forth in Section 4.05thereto. Whether or not the Indemnitor has assumed the Third-Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent shall not be determinative of the amount of Losses relating to such matterconsent.
(c) In the event that the Indemnitee shall in good faith determine that with respect to any Third-Party Claim subject to indemnification hereunder or any proposed settlement of any such Third-Party Claim that such Third-Party Claim may impair any Permits that Indemnitee requires to serve as a federally registered investment adviser, broker-dealer/principal underwriter for mutual funds, or commodity pool operator or to be registered as an investment company or such other similar regulated capacity as is deemed material to its business, the Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or Legal Proceeding relating to any such Third-Party Claim at the sole cost of the Indemnitor, provided, that if the Indemnitee does so take over and assume control, the Indemnitee shall not settle such Third-Party Claim without the written consent of the Indemnitor. If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense, Defense at Indemnitee’s sole cost and expense, the expense of the Indemnitor upon delivery of notice to such effect to the Indemnitor; provided, however, that the Indemnitor (i) Indemnitor shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof, ; and (ii) may at any time thereafter assume the Third-Party Defense, in which event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third-Party Defense, and (iii) will not be obligated to indemnify the Indemnitee under this Agreement hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consentconsent (except where such consent was unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts that could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee under this Agreement (for the avoidance of doubt, excluding any Tax Claim), hereunder is asserted or sought to be collected collected, in each case, in writing, by a Person or Government Entity who is not a Party or an Affiliate thereof third party (a “Third-Third Party Claim”), the Indemnitee shall promptly, but in no event more than 30 days following such Indemnitee’s receipt of a Third Party Claim, notify the Indemnitor in writing of such Third-Third Party Claim (a “Notice of Claim”) as promptly as practicable); provided, however, that a failure or delay by an Indemnitee to provide a Notice of Claim as promptly as practicable timely notice shall not affect the rights or obligations of such Indemnitee unless other than if the Indemnitor shall have been materially actually prejudiced as a result of such failure or delayfailure. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, Agreement and (ii) specify in reasonable detail, as applicable, detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated Loss and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled under this Agreementhereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim, if any, and any other documents evidencing such Third-Third Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of any claim for indemnity by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to, and copies of, information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters subject the confidentiality obligations set forth in Section 4.05.
(b) The Indemnitor shall have the right, but not the obligation, to assume the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third-Party Defense”) by providing written notice of such assumption to the Indemnitee within sixty (60) days following delivery of the Notice of Claim provided, that counsel for the Indemnitor who shall conduct the Third-Party Defense shall be reasonably satisfactory to the Indemnitee. If the Indemnitor assumes the Third- Party Defense in accordance with this Agreement, (i) the Indemnitee may retain separate cocounsel at its sole cost and expense and participate in the defense of the Third-Party Claim, but the Indemnitor 114399-0014/143865664.11 shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or 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 Indemnitor, and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement provides for equitable or other non-monetary relief without the prior written consent of the Indemnitee. The Parties will use their commercially reasonable efforts to minimize Losses from Third-Party Claims to the extent required by, and in accordance with, applicable Law, and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto subject to the confidentiality obligations as set forth in Section 4.05. Whether or not the Indemnitor has assumed the Third-Party Defense, any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent shall not be determinative of the amount of Losses relating to such matter.
(c) In the event that the Indemnitee shall in good faith determine that with respect to any Third-Party Claim subject to indemnification hereunder or any proposed settlement of any such Third-Party Claim that such Third-Party Claim may impair any Permits that Indemnitee requires to serve as a federally registered investment adviser, broker-dealer/principal underwriter for mutual funds, or commodity pool operator or to be registered as an investment company or such other similar regulated capacity as is deemed material to its business, the Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or Legal Proceeding relating to any such Third-Party Claim at the sole cost of the Indemnitor, provided, that if the Indemnitee does so take over and assume control, the Indemnitee shall not settle such Third-Party Claim without the written consent of the Indemnitor. If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense, at Indemnitee’s sole cost and expense, upon delivery of notice to such effect to the Indemnitor; provided, however, that the Indemnitor (i) shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof, (ii) may at any time thereafter assume the Third-Party Defense, in which event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third-Party Defense, and (iii) will not be obligated to indemnify the Indemnitee under this Agreement for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent.
Appears in 1 contract
Sources: Purchase Agreement (Metlife Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts that which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee under this Agreement hereunder (for the avoidance of doubteach, excluding any Tax a “Claim), ”) is asserted or sought to be collected by a Person or Government Entity who is not a Party or an Affiliate thereof third party (a “Third-Third Party Claim”), the Indemnitee shall as soon as practicable notify the Indemnitor in writing of such Third-Third Party Claim (a “Notice of Claim”) as promptly as practicable); provided, however, that a the failure of any Indemnitee to give notice as provided in this Section 9.4(a) shall not relieve the Indemnitor of its obligations under this Article IX, except to the extent that such Indemnitor’s ability to remedy, contest, defend or settle with respect to such Third Party Claim is materially prejudiced by such failure or delay by an Indemnitee to provide a Notice of Claim as promptly as practicable shall not affect the rights or obligations of such Indemnitee unless the Indemnitor shall have been materially prejudiced as a result of such failure or delaygive notice. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability Liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, Agreement and (ii) to the extent ascertainable, specify in reasonable detail, as applicable, detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated Loss Liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled under this Agreementhereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim, if any, and any other documents evidencing such Third-Third Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of ; provided, however, that any claim for indemnity confidential or privileged materials shall not be disclosed by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access toother than as needed for the defense of the Third Party Claim, and copies of, information, records the Indemnitor agrees to enter into a commercially reasonable confidentiality and documents relating to such matters, furnishing employees to assist in non-use agreement with the investigation, defense and resolution of such matters and providing legal and business assistance Indemnitee with respect to such matters subject the confidentiality obligations set forth in Section 4.05information.
(b) The Indemnitor shall have 45 days from the right, but not date on which the obligation, Indemnitor received the Notice of Claim to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third-Third Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third-Third Party Defense”). 84 Notwithstanding the foregoing, the Indemnitor shall not be permitted to assume the Third Party Defense if: (A) upon petition by providing written notice the Indemnitee, the appropriate court determines that the Indemnitor failed or is failing to vigorously prosecute or defend such Third Party Claim, (B) the Third Party Claim is in respect of such assumption any matter involving criminal liability or asserts fraud of the Indemnitee, (C) the matter that is the subject of the Third Party Claim seeks as the primary cause of action the imposition of an equitable or injunctive remedy against the Indemnitee or any of its Affiliates, (D) the Third Party Claim seeks damages in excess of the amount for which the Indemnitor may be liable under this Agreement, (E) the Third Party Claim involves any Governmental Entity as a party thereto, or (F) the Indemnitor fails to provide reasonable assurance to the Indemnitee within sixty (60) days following delivery of the Notice of Claim provided, that counsel for the Indemnitor who shall conduct the Third-its financial capacity to defend such Third Party Defense shall be reasonably satisfactory to the IndemniteeClaim. If the Indemnitor assumes the Third- Third Party Defense in accordance with this Agreementherewith, (i) the Indemnitee may retain separate cocounsel co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim, Claim but the Indemnitor 114399-0014/143865664.11 shall control the investigation, defense and settlement thereof, provided that the Indemnitee shall be entitled to participate in the defense of such Third Party Claim with separate counsel at the expense of the Indemnitor if, in the reasonable opinion of counsel to the Indemnitee, a conflict exists on a material issue between the Indemnitee and the Indemnitor that would make such separate representation advisable, (ii) the Indemnitee will shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnitor, Indemnitor and (iii) the Indemnitor will shall not consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim to the extent such judgment or settlement (x) provides for equitable relief, (y) involves a finding or other non-monetary relief admission of any violation of Law or suggestion of any wrongdoing on behalf of the Indemnitee, or (z) does not fully and unconditionally release the Indemnitee from liability with respect to such Third Party Claim, without prejudice, in each case without the prior written consent of the Indemnitee. The Parties will shall use their commercially reasonable efforts to minimize Losses from Third-Third Party Claims to the extent required by, and in accordance with, applicable Law, and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will shall also cooperate in any such defense and give each other reasonable access to all information relevant thereto subject thereto; provided, however, that no Party shall be required to disclose any confidential or privileged materials other than as needed for the defense of the Third Party Claim, and the receiving Party agrees to enter into a commercially reasonable confidentiality obligations as set forth in Section 4.05and non-use agreement with the disclosing Party with respect to such information. Whether or not the Indemnitor has assumed the Third-Third Party Defense, such Indemnitor shall not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent shall not be determinative of the amount of Losses relating to such matterconsent.
(c) In the event that the Indemnitee shall in good faith determine that with respect to any Third-Party Claim subject to indemnification hereunder or any proposed settlement of any such Third-Party Claim that such Third-Party Claim may impair any Permits that Indemnitee requires to serve as a federally registered investment adviser, broker-dealer/principal underwriter for mutual funds, or commodity pool operator or to be registered as an investment company or such other similar regulated capacity as is deemed material to its business, the Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or Legal Proceeding relating to any such Third-Party Claim at the sole cost of the Indemnitor, provided, that if the Indemnitee does so take over and assume control, the Indemnitee shall not settle such Third-Party Claim without the written consent of the Indemnitor. If the Indemnitor does not or is not entitled to assume the Third-Third Party DefenseDefense within 45 days of receipt of the Notice of Claim, the Indemnitee will be entitled to assume the Third-Third Party Defense, at Indemnitee’s sole cost and expensethe expense of the Indemnitor (subject to the applicable limitations on Losses herein), upon delivery of notice to such effect to the Indemnitor; provided, however, provided that the Indemnitor (i) Indemnitor shall have the right to participate in the Third-Third Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof, (ii) may at the Indemnitee shall not file any time thereafter assume papers or consent to the Third-entry of any judgment or enter into any settlement with respect to the Third Party Defense, in which event Claim without the prior written consent of the Indemnitor (which consent shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third-Party Defensenot be unreasonably withheld or delayed), and (iii) will the Indemnitor shall not be obligated to indemnify the Indemnitee under this Agreement hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent.
Appears in 1 contract
Sources: Stock Purchase Agreement
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts that could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee under this Agreement (for the avoidance of doubt, excluding any Tax Claim), hereunder is asserted or sought to be collected by a Person or Government Entity who is not a Party or an Affiliate thereof third party (a “Third-Third Party Claim”), the Indemnitee shall as soon as reasonably practicable notify the Indemnitor in writing of such Third-Third Party Claim (a “Notice of Claim”) as promptly as practicable; provided, however, that a failure or delay by an Indemnitee to provide a Notice of Claim as promptly as practicable shall not affect the rights or obligations of such Indemnitee unless the Indemnitor shall have been materially prejudiced as a result of such failure or delay). The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) specify in reasonable detail, as applicable, detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated Loss liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled under this Agreementhereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim, if any, and any other documents evidencing such Third-Third Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of any claim for indemnity by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to, and copies of, information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters subject the confidentiality obligations set forth in Section 4.05.
(b) The Indemnitor shall have may notify the right, but not Indemnitee that the obligation, Indemnitor desires to assume the defense or prosecution of such Third-Third Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third-Third Party Defense”) by providing written notice of such assumption to the Indemnitee within sixty (60) days following delivery of the Notice of Claim provided, that counsel for the Indemnitor who shall conduct the Third-Party Defense shall be reasonably satisfactory to the Indemnitee). If the Indemnitor assumes the Third- Third Party Defense in accordance with this Agreementherewith, (i) the Indemnitee may retain separate cocounsel co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim, but the Indemnitor 114399-0014/143865664.11 shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnitor, Indemnitor and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim to the extent such judgment or settlement provides for equitable or other non-monetary relief without the prior written consent of the Indemnitee. The Parties parties will use their commercially reasonable efforts to minimize Losses from Third-Third Party Claims to the extent required by, and in accordance with, applicable Law, and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto subject to the confidentiality obligations as set forth in Section 4.05thereto. Whether or not the Indemnitor has assumed the Third-Third Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent shall not be determinative of the amount of Losses relating to such matterconsent.
(c) In the event that the Indemnitee shall in good faith determine that with respect to any Third-Party Claim subject to indemnification hereunder or any proposed settlement of any such Third-Party Claim that such Third-Party Claim may impair any Permits that Indemnitee requires to serve as a federally registered investment adviser, broker-dealer/principal underwriter for mutual funds, or commodity pool operator or to be registered as an investment company or such other similar regulated capacity as is deemed material to its business, the Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or Legal Proceeding relating to any such Third-Party Claim at the sole cost of the Indemnitor, provided, that if the Indemnitee does so take over and assume control, the Indemnitee shall not settle such Third-Party Claim without the written consent of the Indemnitor. If the Indemnitor does not affirmatively elect not to assume the Third-Third Party DefenseDefense in accordance with Section 9.4(b), the Indemnitee will be entitled to assume the Third-Third Party Defense, at Indemnitee’s its sole cost and expenseexpense (or, if the Indemnitee incurs a Loss with respect to the matter in question for which the Indemnitee is entitled to indemnification pursuant to Section 9.2 or 9.3, as applicable, at the expense of the Indemnitor) upon delivery of notice to such effect to the Indemnitor; provided, however, provided that the Indemnitor (i) Indemnitor shall have the right to participate in the Third-Third Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof, ; (ii) the Indemnitor may at any time thereafter assume the Third-Third Party Defense, in which event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third-Third Party Defense, and (iii) the Indemnitor will not be obligated to indemnify the Indemnitee under this Agreement hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent.
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Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts that which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee under this Agreement hereunder (for the avoidance of doubteach, excluding any Tax a “Claim), ”) is asserted or sought to be collected by a Person or Government Entity who is not a Party or an Affiliate thereof third party (a “Third-Third Party Claim”), the Indemnitee shall as soon as practicable notify the Indemnitor in writing of such Third-Third Party Claim (a “Notice of Claim”) as promptly as practicable); provided, however, that a the failure of any Indemnitee to give notice as provided in this Section 9.4(a) shall not relieve the Indemnitor of its obligations under this Article IX, except to the extent that such Indemnitor’s ability to remedy, contest, defend or settle with respect to such Third Party Claim is materially prejudiced by such failure or delay by an Indemnitee to provide a Notice of Claim as promptly as practicable shall not affect the rights or obligations of such Indemnitee unless the Indemnitor shall have been materially prejudiced as a result of such failure or delaygive notice. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability Liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, Agreement and (ii) to the extent ascertainable, specify in reasonable detail, as applicable, detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated Loss Liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled under this Agreementhereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim, if any, and any other documents evidencing such Third-Third Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of ; provided, however, that any claim for indemnity confidential or privileged materials shall not be disclosed by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access toother than as needed for the defense of the Third Party Claim, and copies of, information, records the Indemnitor agrees to enter into a commercially reasonable confidentiality and documents relating to such matters, furnishing employees to assist in non-use agreement with the investigation, defense and resolution of such matters and providing legal and business assistance Indemnitee with respect to such matters subject the confidentiality obligations set forth in Section 4.05information.
(b) The Indemnitor shall have 45 days from the right, but not date on which the obligation, Indemnitor received the Notice of Claim to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third-Third Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third-Third Party Defense”). Notwithstanding the foregoing, the Indemnitor shall not be permitted to assume the Third Party Defense if: (A) upon petition by providing written notice the Indemnitee, the appropriate court determines that the Indemnitor failed or is failing to vigorously prosecute or defend such Third Party Claim, (B) the Third Party Claim is in respect of such assumption any matter involving criminal liability or asserts fraud of the Indemnitee, (C) the matter that is the subject of the Third Party Claim seeks as the primary cause of action the imposition of an equitable or injunctive remedy against the Indemnitee or any of its Affiliates, (D) the Third Party Claim seeks damages in excess of the amount for which the Indemnitor may be liable under this Agreement, (E) the Third Party Claim involves any Governmental Entity as a party thereto, or (F) the Indemnitor fails to provide reasonable assurance to the Indemnitee within sixty (60) days following delivery of the Notice of Claim provided, that counsel for the Indemnitor who shall conduct the Third-its financial capacity to defend such Third Party Defense shall be reasonably satisfactory to the IndemniteeClaim. If the Indemnitor assumes the Third- Third Party Defense in accordance with this Agreementherewith, (i) the Indemnitee may retain separate cocounsel co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim, Claim but the Indemnitor 114399-0014/143865664.11 shall control the investigation, defense and settlement thereof, provided that the Indemnitee shall be entitled to participate in the defense of such Third Party Claim with separate counsel at the expense of the Indemnitor if, in the reasonable opinion of counsel to the Indemnitee, a conflict exists on a material issue between the Indemnitee and the Indemnitor that would make such separate representation advisable, (ii) the Indemnitee will shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnitor, Indemnitor and (iii) the Indemnitor will shall not consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim to the extent such judgment or settlement (x) provides for equitable relief, (y) involves a finding or other non-monetary relief admission of any violation of Law or suggestion of any wrongdoing on behalf of the Indemnitee, or (z) does not fully and unconditionally release the Indemnitee from liability with respect to such Third Party Claim, without prejudice, in each case without the prior written consent of the Indemnitee. The Parties will shall use their commercially reasonable efforts to minimize Losses from Third-Third Party Claims to the extent required by, and in accordance with, applicable Law, and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will shall also cooperate in any such defense and give each other reasonable access to all information relevant thereto subject thereto; provided, however, that no Party shall be required to disclose any confidential or privileged materials other than as needed for the defense of the Third Party Claim, and the receiving Party agrees to enter into a commercially reasonable confidentiality obligations as set forth in Section 4.05and non-use agreement with the disclosing Party with respect to such information. Whether or not the Indemnitor has assumed the Third-Third Party Defense, such Indemnitor shall not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent shall not be determinative of the amount of Losses relating to such matterconsent.
(c) In the event that the Indemnitee shall in good faith determine that with respect to any Third-Party Claim subject to indemnification hereunder or any proposed settlement of any such Third-Party Claim that such Third-Party Claim may impair any Permits that Indemnitee requires to serve as a federally registered investment adviser, broker-dealer/principal underwriter for mutual funds, or commodity pool operator or to be registered as an investment company or such other similar regulated capacity as is deemed material to its business, the Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or Legal Proceeding relating to any such Third-Party Claim at the sole cost of the Indemnitor, provided, that if the Indemnitee does so take over and assume control, the Indemnitee shall not settle such Third-Party Claim without the written consent of the Indemnitor. If the Indemnitor does not or is not entitled to assume the Third-Third Party DefenseDefense within 45 days of receipt of the Notice of Claim, the Indemnitee will be entitled to assume the Third-Third Party Defense, at Indemnitee’s sole cost and expensethe expense of the Indemnitor (subject to the applicable limitations on Losses herein), upon delivery of notice to such effect to the Indemnitor; provided, however, provided that the Indemnitor (i) Indemnitor shall have the right to participate in the Third-Third Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof, (ii) may at the Indemnitee shall not file any time thereafter assume papers or consent to the Third-entry of any judgment or enter into any settlement with respect to the Third Party Defense, in which event Claim without the prior written consent of the Indemnitor (which consent shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third-Party Defensenot be unreasonably withheld or delayed), and (iii) will the Indemnitor shall not be obligated to indemnify the Indemnitee under this Agreement hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent.
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