Indemnification Procedures. With respect to any claim made or threatened against a party entitled to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to): (i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure; (ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request; (iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim; (iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and (v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 3 contracts
Sources: Collateral Management Agreement (Monroe Capital Income Plus Corp), Collateral Management Agreement (Monroe Capital Income Plus Corp), Collateral Management Agreement (Monroe Capital Income Plus Corp)
Indemnification Procedures. With respect (a) All claims for indemnification under this Agreement shall be asserted and resolved pursuant to any claim made or threatened against a this Section 2.3.
(b) Each party entitled to indemnification under this Section 9 Agreement (an the "Indemnified Party"), or compulsory process or request or other ) shall give notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(ia "Claim Notice") give written notice to the party required to indemnify the Indemnified Party under this Section 9 provide such indemnification (the "Indemnifying Party") of such claim within 10 days promptly after such Indemnified Party has notice of any Adverse Consequence which may give rise to a claim is made or threatenedfor indemnification against the other party under this Agreement, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that no delay on the failure part of any the Indemnified Party to provide such notice to in notifying the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except from any obligation hereunder unless (and then solely to the extent extent) the Indemnifying Party thereby is prejudiced. The Indemnified Party shall not be required to commence litigation or take any action against any third party prior to delivery of the Claim Notice.
(c) The Indemnifying Party will have the right (at its expense) to assume the investigation and/or defense of any Adverse Consequence or any litigation resulting therefrom so long as (i) the Indemnifying Party notifies the Indemnified Party in writing (within 20 days after the Indemnified Party has given the Claim Notice) that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason will indemnify the Indemnified Party from and against the entirety of such failure;
the Adverse Consequence, (ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend, and cooperation with respect to such claim otherwise indemnify for, the Adverse Consequence and fulfill its indemnification obligations hereunder and (iii) the Adverse Consequence involves only money damages and does not seek an injunction or other equitable relief.
(d) So long as the Indemnifying Party may reasonably requireis conducting the defense of the Adverse Consequence in accordance with Section 2.3(c), including, without limitation, making appropriate personnel available to (A) the Indemnifying Party at such reasonable times as the Indemnifying Indemnified Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in retain separate co-counsel at its sole discretion cost and at its expense, to expense and participate in the investigationdefense of the Adverse Consequence, defense and settlement of such claim;
(ivB) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or will not consent to the entry of any judgment in or enter into any settlement with respect thereof, in each case to the Adverse Consequence without the prior written consent of the Indemnifying Party; and
Party (vnot to be withheld unreasonably), and (C) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must will not consent in writing to the entry of any settlementjudgment or enter into any settlement with respect to the Adverse Consequence without the prior written consent of the Indemnified Party; provided, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if that the Indemnifying Party assumes may consent to such judgment or enter into such settlement without the defense prior written consent of the Indemnified Party so long as an unconditional term of any such claimjudgment or settlement includes the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability with respect to such Adverse Consequence.
(e) In the event any of the conditions in Section 2.3(c) is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Indemnifying Party shall not be liable for Adverse Consequence in any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party manner it may reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party deem appropriate (and the Indemnified Party need not consult with, or that either an Indemnified obtain any consent from, any Indemnifying Party or in connection therewith), (B) the Indemnifying Party has defenses that are not available will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Adverse Consequence (including reasonable attorneys' fees and expenses), and (C) the Indemnifying Parties will remain responsible for any Adverse Consequence the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of or caused by the Adverse Consequence to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (fullest extent provided in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partythis Agreement.
Appears in 3 contracts
Sources: Indemnification & Liability (Pittston Co), Indemnification & Liability (Pittston Co), Indemnification & Liability (Pittston Co)
Indemnification Procedures. With respect to any claim made or threatened against a Each party entitled to indemnification under this Section 9 3 (an "the “Indemnified Party"”), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party under this Section 9 (whose approval shall not unreasonably be withheld), and the "Indemnifying Party") of Indemnified Party may participate in such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature defense. Failure of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such give notice to the Indemnifying Party as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 9 except 3 only to the extent that the failure or delay in giving notice has a material adverse impact on the ability of the Indemnifying Party is materially prejudiced to defend against such claim. No Indemnifying Party, in the defense of any such claim or otherwise forfeits rights litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof, the giving of a release from all liability in respect to such claim or litigation. If any such Indemnified Party shall have been advised by counsel chosen by it that there may be one or more legal defenses by reason of available to such failure;
(ii) at the expense of Indemnified Party that are different from or additional to those available to the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as shall not have the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, right to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals action on behalf of such claim; provided that, (1) if Indemnified Party and will reimburse such Indemnified Party and any person controlling such Indemnified Party for the Indemnifying Party assumes the defense reasonable fees and appeals expenses of such claim, any counsel retained by the Indemnified Party must consent in writing to the entry of any settlementParty, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, it being understood that the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatnot, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best be liable for the reasonable efforts in the light fees and expenses of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent more than one separate firm of attorneys for such Indemnified Party nor or controlling person, which firm shall be designated in writing by the Indemnified Party to the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 3 contracts
Sources: Registration Rights Agreement (Entertainment Games, Inc.), Registration Rights Agreement (Entertainment Games, Inc.), Registration Rights Agreement (Entertainment Games, Inc.)
Indemnification Procedures. With respect to any claim made or threatened against a third party entitled claims, other than those relating to Taxes (which are the subject of Section 6.7(e)), all claims for indemnification under this Section 9 by the Shareholders' Indemnified Parties and the Republic Subsidiary's Indemnified Partners (each, an "Indemnified Party" and, collectively, the "), Indemnified Parties") hereunder shall be asserted and resolved as set forth in this Section 8.4. In the event that any claim or compulsory process or request or other notice of demand by any loss, claim, damage or liability served upon an Indemnified Party, third party for which such a party or parties to this Agreement (the "Indemnifying Party) may be liable to the Indemnified Party hereunder (a "Claim") is asserted against or may sought to be entitled to indemnification under this Section 9collected from the Indemnified Party by such third party, such Indemnified Party shall as promptly as practicable notify the Indemnifying Party in writing of such Claim and the amount or the estimated amount thereof to the extent then feasible (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees which estimate shall not be conclusive of the Collateral Manager, final amount of such Claim) (the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to "Claim Notice"). The failure on the party required to indemnify part of the Indemnified Party under this Section 9 (the "Indemnifying Party") of to give any such claim within 10 days after such claim is made or threatened, which notice shall specify Claim Notice in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party a reasonably prompt manner shall not relieve the Indemnifying Party of its obligations under this Section 9 except any indemnification obligation hereunder unless, and only to the extent that that, the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense thereby. The Indemnifying Party shall have thirty days from delivery of the Indemnifying PartyClaim Notice (the "Notice Period") to notify the Indemnified Party whether or not it desires to defend the Indemnified Party against such Claim, provide in which case the Indemnified Party shall, at its sole cost and expense, have the right to defend the Indemnified Party by appropriate proceedings and by counsel reasonably acceptable to the Indemnified Party and shall have the sole power to direct and control such defense; provided that any Indemnified Party may participate in any such defense at its sole cost and expense. The Indemnified Party shall not settle a Claim for which it is indemnified by the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to Party unless the Indemnifying Party does not defend the rightIndemnified Party against such Claim. Notwithstanding the foregoing, the Indemnified Party shall have the sole right to defend, settle or compromise any Claim with respect to which it has agreed in such Indemnifying writing to waive its right to indemnification pursuant to this Agreement. Notwithstanding the foregoing, the Indemnified Party's sole discretion and at such Indemnifying Party's sole expense, during the period the Shareholders are determining whether to elect to assume the defense of a matter covered by this Section 8.4, may take such claim, includingreasonable actions as it deems necessary to preserve any and all rights with respect to the matter, without limitation, such actions being construed as a waiver of the right Indemnified Party's rights to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing indemnification pursuant to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partythis Agreement.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Republic Industries Inc), Agreement and Plan of Reorganization (Guy Salmon Usa LTD), Agreement and Plan of Reorganization (Republic Industries Inc)
Indemnification Procedures. With (a) A party entitled to indemnification pursuant to this Agreement (an “Indemnified Party”) shall, with respect to any claim made or threatened against a party entitled to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party for which indemnification is or may be entitled to indemnification under this Section 9available, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of notify the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the other party required to indemnify the Indemnified Party under this Section 9 (the "“Indemnifying Party"”) in writing of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and as soon as practicable but not more than ten (10) days after the amount (or an estimate Indemnified Party receives notice of the amount) assertion of the claim; provided, however, that the . (The failure of any by an Indemnified Party to provide such give notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 9.3, except to the extent that the failure results in the failure of actual notice and the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason damaged as a result of the failure to give notice.) Upon receipt of notice of the assertion of a claim, the Indemnifying Party may, at its option, assume the defense of the claim. If the Indemnifying Party assumes the defense, the Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) any such action, but the fees and expenses of such failure;
counsel shall be at the expense of the Indemnified Party unless (iia) the employment of counsel by the Indemnified Party has been authorized by the Indemnifying Party, or (b) the Indemnified Party has been advised by its counsel in writing that there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of the action (in which case the Indemnifying Party shall not have the right to direct the defense of the action on behalf of the Indemnified Party), in each of which cases the reasonable fees and expenses of such counsel shall be at the expense of the Indemnifying Party, provide . If the Indemnifying Party does not assume the defense, the Indemnified Party shall have the right to employ counsel and to control any such information action, and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion fees and at its expense, to participate in the investigation, defense and settlement expenses of such claim;
(iv) subject to clause (v) below, neither incur any material counsel shall be at the expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the . An Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense shall not be liable for any settlement of such claim, including, an action effected without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must its written consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the , nor shall an Indemnifying Party assumes settle any such action without the defense written consent of such claim, the Indemnifying Indemnified Party (which consent shall not be liable for unreasonably withheld). No Indemnifying Party will consent to the entry of any fees and expenses of counsel for judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party incurred thereafter in connection a release from all liability with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due respect to the conflicting interests claim. Each of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions cooperate in the same jurisdiction arising out defense of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromiseclaim for which indemnification is available and shall furnish such records, information, testimony and attend such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; conferences, discovery proceedings, hearings, trials and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not appeals as may reasonably be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyrequested.
Appears in 3 contracts
Sources: Services Agreement (Newmarket Corp), Services Agreement (Newmarket Corp), Services Agreement (Newmarket Corp)
Indemnification Procedures. With respect (a) Any Buyer Indemnitee or Seller Indemnitee making a claim for indemnification pursuant to any claim made or threatened against a party entitled to indemnification under this Section 9 Article V (an "“Indemnified Party"), or compulsory process or request or ”) must give the other Party from whom indemnification is sought (an “Indemnifying Party”) written notice of such claim (a “Claim Notice”) promptly after the Indemnified Party receives any written notice of any loss, claim, damage Proceeding against or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify involving the Indemnified Party under this Section 9 (by a Governmental Authority or other third party, or otherwise discovers the "Indemnifying Party") of liability, obligation or facts giving rise to such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount for indemnification (or an estimate of the amount) of the claim“Claim”); provided, however, provided that the failure of any Indemnified Party to provide such notice to the notify or delay in notifying an Indemnifying Party shall will not relieve the Indemnifying Party of its obligations under pursuant to this Section 9 Article V, except to the extent (and only to the extent) that such failure actually ▇▇▇▇▇ the Indemnifying Party. Such Claim Notice must contain a description of the Claim and the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known or reasonably ascertainable at such time; provided that such amount or estimated amount shall not be conclusive of the final amount, if any, of such Claim). Notwithstanding the foregoing, any claim for a breach of a representation or warranty or covenant must be delivered prior to the expiration of the applicable survival term set forth in Section 5.1.
(b) With respect to the defense of any Claim against or involving an Indemnified Party in which a Governmental Authority or other third party in question seeks recovery of a sum of money for which a Claim Notice is provided (i) the Indemnifying Party is materially prejudiced shall have the right to participate in the defense of each Claim, (ii) the Indemnified Party shall fully cooperate with the Indemnifying Party and provide access to any and all applicable documents and other information and Persons reasonably requested by the Indemnifying Party; provided that the Indemnified Party shall have no obligation to disclose any documents or otherwise forfeits rights other information to the extent such disclosure in the Indemnified Party’s reasonable judgment may adversely affect the attorney-client privilege or defenses by reason work product protections related to such documents or other information and (iii) at its option an Indemnifying Party may at its own expense assume the defense and appoint as lead counsel of such failure;defense any legal counsel selected by the Indemnifying Party.
(c) If the Indemnifying Party assumes the defense of any Claim pursuant to Section 5.3(b)(iii), the Indemnified Party will be entitled to participate in the defense of such Claim and to employ counsel of its choice for such purpose at its own expense; provided that the Indemnifying Party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party assumes control of such defense; provided, further, that the Indemnifying Party will not be entitled to assume control of the defense of such claim, if:
(i) the Indemnifying Party fails to elect in writing to assume the defense of the Claim pursuant to Section 5.3(b)(iii) within twenty (20) calendar days of receipt of the applicable Claim Notice,
(ii) at a conflict of interest exists or could reasonably be expected to arise which, under applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel from representing both the expense of the Indemnifying Party, provide Indemnified Party and the Indemnifying Party in such information and cooperation with respect to such claim as Proceeding, or
(iii) a court of competent jurisdiction rules that the Indemnifying Party may reasonably requirehas failed or is failing to prosecute or defend vigorously such claim; provided, further, that, in each case, the Indemnified Party shall be prohibited from compromising or settling any Claim, including, without limitation, making appropriate personnel available any Claim relating to Taxes that could reasonably be expected to have an adverse effect on the Taxes relating to the Indemnifying Party at such reasonable times as Purchased Assets in Tax periods (or portions thereof) beginning after the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claimClosing Date, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); withheld or delayed.
(2d) if In the event that the Indemnifying Party assumes the defense of such claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance, personnel, witnesses and materials as the Indemnifying Party may reasonably request. Regardless of which Party defends such claim, the other Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing.
(e) Without the prior written consent of the Indemnified Party (which shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party unreasonably withheld or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderdelayed), the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall enter into any settlement of any Claim for which the Indemnifying Party reimburse has assumed the defense pursuant to Section 5.3(b)(iii) if (i) pursuant to or as a result of such settlement, such settlement would result in any liability on the part of the Indemnified Party for any costs of counsel which the Indemnified Party is not entitled to indemnification hereunder or (ii) the settlement involves anything other than monetary damages. If a firm offer is made to settle such claim, which offer the Indemnifying Party is permitted to settle under this Section 5.3, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnified Party to that effect. If the Indemnified Party objects to such firm offer within ten (10) calendar days after its receipt of such notice, the Indemnified Party may continue to contest or defend such claim and, in such event, the maximum liability of the Indemnifying Party as to such claim shall not exceed such amount of such settlement offer payable by the Indemnifying Party hereunder, plus other Losses paid or incurred by the Indemnified Party up to the point such notice had been delivered to the Indemnified Party.
Appears in 3 contracts
Sources: Option Agreement (QLT Inc/Bc), Asset Purchase and Sale Agreement (QLT Inc/Bc), Option Agreement (QLT Inc/Bc)
Indemnification Procedures. With respect 17.6.1 Any Person making a claim for indemnification pursuant to any claim made Section 17.2 or threatened against a party entitled to indemnification under this Section 9 17.4 above (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) must give written notice to the party required to indemnify the Indemnified Party under this Section 9 from whom indemnification is sought (the an "Indemnifying Party") written notice of such claim within 10 days after describing such claim is made or threatened, which notice shall specify in with reasonable detail particularity and the nature and amount of such Loss to the claim and the amount (or an estimate of the amount) of the claim; provided, however, extent that the failure nature and amount of such Loss is known at such time) (an "Indemnification Claim Notice") promptly after the Indemnified Party receives any written notice of any action, lawsuit, proceeding, investigation or other claim (a "Proceeding") against or involving the Indemnified Party by a Governmental Authority or other third party or otherwise discovers the liability, obligations or facts giving rise to provide such notice claim for indemnification; provided that, the failure to the notify or delay in notifying an Indemnifying Party shall will not relieve the Indemnifying Party of its obligations under this pursuant to Section 9 17.2 or 17.4, as applicable, except to the extent that (and only to the extent that) such failure shall have caused the damages for which the Indemnifying Party is materially prejudiced obligated to be greater than such damages would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder.
17.6.2 The Indemnifying Party shall have 30 days from the personal delivery or otherwise forfeits rights mailing of the Indemnification Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or defenses by reason of such failure;
(ii) at not the expense Indemnifying Party disputes the liability of the Indemnifying Party, provide Party to the Indemnifying Indemnified Party such information and cooperation hereunder with respect to such claim as or demand, and (ii) whether or not it desires to defend the Indemnified Party against such claim or demand.
17.6.3 If (i) the Indemnifying Party may agrees in writing to be responsible for the full amount of such Loss, and (ii) the claim for indemnification does not relate to a matter (A) that, if determined adversely, could reasonably requirebe expected to expose the Indemnified Party to criminal prosecution or penalties, including(B) that, without limitationif determined adversely, making appropriate personnel available could reasonably be expected to result in the imposition of a consent order, injunction or decree which would restrict the activity or conduct of the Indemnified Party or any Affiliate thereof, or (C) for which the Indemnified Party shall have reasonably concluded, in good faith, after consultation with the Indemnifying Party, that such representation is likely to result in a conflict of interest or materially jeopardize the viability of such defense, then the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense. If any Indemnified Party desires to participate in any such defense, it may do so at its sole cost and expense. The Indemnifying Party in no event shall have any right to control (as opposed to participate in pursuant to Section 17.6.4 hereof) the defense of any claim and shall pay the expenses of the Indemnified Party's defense of such reasonable times as claim if:
17.6.3.1 the Indemnifying Party may requestdoes not agree in writing to be responsible for the full amount of any claim;
17.6.3.2 the claim for indemnification relates to a matter (iiiA) that, if determined adversely, could reasonably be expected to expose the Indemnified Party to criminal prosecution or penalties, (B) that, if determined adversely, could reasonably be expected to result in the event suit imposition of a consent order, injunction or decree which would restrict the activity or conduct of the Indemnified Party or any Affiliate thereof, or (C) for which the Indemnified party shall have reasonably concluded, in good faith, after consultation with the Indemnifying Party, that such representation is brought with respect likely to result in a conflict of interest or materially jeopardize the viability of such claim, upon reasonable prior notice, afford to defense; or
17.6.3.3 a court determines that the Indemnifying Party is not vigorously defending the right, claim.
17.6.4 If the claim relates to a matter for which both the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit could be liable or responsible hereunder, such as a default or consent Loss for which both parties could be partially liable due to the entry of any judgment in respect thereofCap and Deductible, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party and the right, Indemnified Parties shall cooperate in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume good faith in the defense of such claim, including, action. No party shall settle any claim without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals prior consent of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof other party (which consent shall not be unreasonably withheld); provided, however, that an Indemnified Party shall not be required to consent to any settlement if the proposed settlement (2i) does not provide for a full release of all claims against such Indemnified Party, (ii) is on a basis which would result in the imposition of a consent order, injunction or decree or any other restriction on the activity or conduct of such Indemnified Party, or (iii) is on a basis which could, in such Indemnified Party's judgment, expose such Indemnified Party to criminal liability or require an admission of wrongdoing by such Indemnified Party; provided further that, the foregoing notwithstanding, an Indemnified Party may settle or compromise any claim without the prior consent of the Indemnifying Party if under Section 17.6.3 the Indemnifying Party had no right to control the defense of such claim. If an Indemnified Party does not consent to a definitive settlement proposed by the Indemnifying Party (with respect to which a settlement agreement has been agreed to by all parties other than the Indemnified Party) which settlement satisfies the foregoing clauses (i) through (iii) or if the Indemnifying Party assumes does not consent to a settlement proposed by an Indemnified Party, then the party declining such settlement shall thereafter have full control of the defense of such claim, and the maximum liability of the party that proposed such settlement shall be determined as though such matter had settled on the terms so proposed, and, if applicable, the amount of the proposed settlement, together with all legal costs and expenses incurred in connection with such matter through and including the proposed settlement date, shall be deemed the amount of the Loss of the Indemnified Party for purposes of determining whether the Cap and Deductible have been met. If both parties agree to the settlement, the relative liabilities of the parties for such Losses shall be determined as provided in the other provisions of this Article 17.
17.6.5 All costs and expenses incurred by the Indemnifying Party in defending a claim or demand under Section 17.6.3, and all costs and expenses incurred by the Indemnified Party in defending a claim or demand which the Indemnifying Party has elected not to defend (including by virtue of its failure to give timely notice to the Indemnified Party) or is not permitted to defend under Section 17.6.3 shall be a liability of, and shall be paid by, the Indemnifying Party.
17.6.6 To the extent the Indemnifying Party shall not be liable for direct, control or participate in the defense or settlement of any fees and expenses of counsel for any third-party claim or demand, the Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of will give the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party or that either an Indemnified Party or the Party. The Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its their best reasonable efforts in the light defense of the then-prevailing circumstances to defend all such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyclaims.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Boise Cascade Holdings, L.L.C.), Asset Purchase Agreement (Boise Cascade Holdings, L.L.C.)
Indemnification Procedures. With respect to (a) If any claim made Proceeding shall be brought or threatened asserted against a party any person entitled to indemnification under this Section 9 indemnity hereunder (each, an "“Indemnified Party"”), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall promptly notify the person from whom indemnity is sought (or with respect the “Indemnifying Party”) in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate payment of the amount) of the claimall fees and expenses incurred in connection with defense thereof; provided, however, that the failure of any Indemnified Party to provide give such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under or liabilities pursuant to this Section 9 Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have prejudiced the Indemnifying Party.
(b) An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (i) the Indemnifying Party is materially prejudiced has agreed in writing to pay such fees and expenses; or otherwise forfeits rights or defenses by reason of such failure;
(ii) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (iii) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel in writing (with a copy to the Indemnifying Party) that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, provide the Indemnifying Party shall not have the right to assume the defense thereof and such information and cooperation with respect to such claim as counsel shall be at the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the . The Indemnifying Party shall not be liable for any settlement of any Proceeding without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not impose any monetary or other obligation or restriction on the Indemnified Party.
(c) All reasonable fees and expenses of counsel for any the Indemnified Party (including reasonable fees and expenses to the extent incurred thereafter in connection with investigating or preparing to defend such claim except thatProceeding in a manner not inconsistent with this Article VI) shall be paid to the Indemnified Party, if as incurred, within fifteen business days of written notice thereof to the Indemnifying Party, which notice shall be delivered no more frequently than on a monthly basis (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to undertake to reimburse all such fees and expenses to the conflicting interests of the Indemnifying Party and the extent it is finally judicially determined that such Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are is not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right entitled to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party).
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Cv Therapeutics Inc), Common Stock Purchase Agreement (Nektar Therapeutics)
Indemnification Procedures. With respect to (a) All claims for indemnification by any claim made or threatened against a party entitled to indemnification under this Section 9 Article VIII (an "Indemnified Party"), ) based on or compulsory process arising from a third party claim shall be asserted and resolved as set forth in this Section 8.3. In the event that any claim or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, demand by a third party for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the a party required to indemnify the Indemnified Party under this Section 9 hereto (the "Indemnifying Party") may be required to indemnify the Indemnified Party hereunder (a "Claim") is asserted against or sought to be collected from any Indemnified Party by a third party, such Indemnified Party shall as promptly as practicable, but in no event more than 10 days following such Indemnified Party's receipt of notice of such claim within 10 days after Claim, notify the Indemnifying Party in writing of such claim is made or threatenedClaim, which and such notice shall specify (to the extent known) in reasonable detail the nature amount of such claim and any relevant facts and circumstances relating thereto (the "Claim Notice"); provided, however, that any failure to give such prompt notice or to provide any such facts and circumstances shall not constitute a waiver of any rights of the claim and Indemnified Party, except to the amount (or an estimate extent that the rights of the amountIndemnifying Party are actually prejudiced thereby.
(b) The Indemnifying Party shall have thirty (30) days from delivery of the claimClaim Notice to notify the Indemnified Party whether or not the Indemnifying Party elects to defend the Indemnified Party against such Claim; provided, however, that an election by the Indemnifying Party during such thirty-day period not to defend the Indemnified Party against such Claim shall not preclude the Indemnifying Party from electing to defend, or participate in the defense of, the Indemnified Party from such Claim at a later time; and provided, further, that any election by the Indemnifying Party to defend a Claim shall not be construed to be an admission as to liability for indemnification hereunder.
(c) In the event that the Indemnifying Party notifies the Indemnified Party that it desires to defend the Indemnified Party against such Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense. All costs and expenses incurred by the Indemnifying Party in defending against such Claim shall be borne by the Indemnifying Party. If any Indemnified Party desires to participate in any such defense it may do so at its sole cost and expense. The Indemnified Party shall not settle, admit or in any other way materially prejudice a Claim which is indemnifiable hereunder by the Indemnifying Party without the written consent of the Indemnifying Party. The Indemnifying Party may not without the written consent of the Indemnified Party settle or compromise any action or consent to the entry of any judgment; provided, however, that the failure Indemnifying Party may settle or compromise any action if such settlement or compromise provides for an unconditional release of the Indemnified Party and the sole relief provided is monetary damages that are paid in full by the Indemnifying Party.
(d) If the Indemnifying Party either does not respond to the Claim Notice within the required ten day period or elects not to defend the Indemnified Party against such Claim, then the Indemnified Party may defend such Claim by appropriate proceedings and in such case shall control the defense of such Claim and the Indemnifying Party will be bound by any determination made by a court or arbitrator with respect to such Claim or the terms and conditions of any compromise or settlement effected by the Indemnified Party to provide such notice to Party; provided, however, that the Indemnifying Party shall have the right to consent to the counsel chosen to represent the Indemnified Party in such defense, which consent shall not relieve be unreasonably withheld. In such case, the Indemnified Party may not without the written consent of the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced settle or otherwise forfeits rights or defenses by reason of compromise such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default action or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of judgment. The Indemnified Party shall cooperate with the Indemnifying Party; and
(v) upon reasonable prior notice, afford to including giving the Indemnifying Party and its counsel reasonable access to the rightpersonnel, in such Indemnifying Party's sole discretion business records and at such Indemnifying Party's sole expense, other documents relating to assume the defense of such claim, including, without limitation, Claim and permitting consultations with the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests other advisors of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
(e) Notwithstanding anything to the contrary contained in this Agreement, in the event that any fact, event or circumstance which results in an adjustment to the Purchase Price (including in calculating the Post-Closing Adjustment) would also constitute a breach or inaccuracy of any of Seller's representations, warranties, covenants or agreements under this Agreement, Seller shall have no obligation to indemnify any Purchaser Indemnified Party with respect to such breach or inaccuracy.
Appears in 2 contracts
Sources: Asset Purchase Agreement (RCN Corp /De/), Asset Purchase Agreement (Susquehanna Media Co)
Indemnification Procedures. With respect The obligation to any claim made or threatened against a indemnify under Sections 8.1, 8.2 and 8.5 is conditioned upon receiving from the party entitled to seeking indemnification under this Section 9 (an the "Indemnified Party"), or compulsory process or request or other ) written notice of the assertion or institution of a claim arising from or related to any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall Loss (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i"Claim") give written notice to the party required to indemnify after the Indemnified Party under this Section 9 (the "Indemnifying Party") has actual knowledge of such claim within 10 days after such claim is made or threateneda Claim, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, PROVIDED that the failure of any Indemnified Party to provide such give notice to the Indemnifying Party as provided herein shall not relieve the Indemnifying Party of its obligations indemnification obligation under this Section 9 Agreement except to the extent that such failure results in a lack of notice to the Indemnifying Party and the Indemnifying Party is materially prejudiced as a result of such failure to give notice. Upon written unqualified acknowledgement of its indemnification obligations with respect to a third-party Claim, the party from whom indemnification is sought (the "Indemnifying Party") shall have the absolute right, in its sole discretion and expense, to elect to defend, contest, settle or otherwise forfeits rights protect against any such Claim with legal counsel reasonably acceptable to the Indemnified Party; PROVIDED that the relief sought in any such Claim is for money damages only and the Indemnified Party reasonably determines that the Indemnifying Party has the financial resources to pay such damages; and PROVIDED FURTHER that the Indemnifying Party shall not settle or defenses by reason compromise any Claim without the consent of the Indemnified Party, which consent to settlement or compromise shall not be unreasonably withheld. If the Indemnifying Party conducts such failure;
(ii) defense, the Indemnified Party shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross-claims or counterclaims it may have. The Indemnified Party shall, and shall cause its affiliates to, at the expense cost of the Indemnifying Party, provide the Indemnifying Party such information at all times cooperate in all reasonable ways with, make their relevant files and cooperation with respect to such claim as the Indemnifying Party may reasonably requirerecords available for inspection and copying by, including, without limitation, making appropriate personnel and make their employees available or otherwise render reasonable assistance to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in its defense of any action being indemnified hereunder. In the event suit is brought with respect to such claimthe Indemnified Party, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, makes any settlement with respect to any Claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with bound to such claim except that, if such Indemnified Party reasonably determines that counsel designated by settlement. In the event the Indemnifying Party has fails timely to defend, contest or otherwise protect against any suit, action, investigation, claim or preceding related to a conflict of interest due Claim, Indemnified Party shall have the right, but not the obligation, to defend, contest, assert crossclaims, or counterclaims or otherwise protect against the conflicting interests of same and may make any compromise or settlement thereof and recover and be indemnified for the entire cost thereof from the Indemnifying Party including, without limitation, legal expenses, disbursements and all amounts paid as a result of such suit, action, investigation, claim, proceeding, crossclaim or counterclaim or compromise or settlement thereof, and provided, further, if the Indemnified Party or that either an Indemnified Party or should incur any such expense, the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements Indemnified Party's interest incurred on all such amounts, from the date incurred by the Indemnified Party through the date of one counsel (in addition to any local counsel) separate from such payment by the Indemnifying Party's own counsel for all Indemnified Parties , at a rate per annum equal to the publicly announced base interest rate of Citibank, N.A., in connection with any one action or separate but similar or related actions New York City, in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior effect from time to entering into any final settlement or compromisetime, which rate shall change as and when such Indemnifying Party base interest rate shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partychange.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hmi Industries Inc), Stock Purchase Agreement (Hmi Industries Inc)
Indemnification Procedures. With respect to (a) Promptly after receipt by any claim made or threatened against a party Person entitled to indemnification under this Section 9 Sections 2.2 or 2.3 (an "“Indemnified Party"), or compulsory process or request or other ”) of notice of the commencement of any loss, claim, damage or liability served upon an Indemnified Party, for action in respect of which such Indemnified Party is or indemnity may be entitled to indemnification sought against any Person under this Section 9Sections 2.2 or 2.3 (an “Indemnifying Party”), such Indemnified Party shall (or with respect to Indemnified notify all Indemnifying Parties that are directors, officers, stockholders, members, partners, agents or employees in writing of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
commencement thereof (i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the so notify an Indemnifying Party shall not relieve the any Indemnifying Party of its obligations under this Section 9 from any liability it may have hereunder except to the extent that the Indemnifying Party is who did not receive such notice shall have been materially prejudiced or otherwise forfeits rights or defenses by reason such failure) and, subject to the provisions hereinafter stated, the Indemnifying Party shall be entitled to assume the defense of such failure;action (including the employment of counsel, who shall be counsel reasonably satisfactory to such Indemnified Party), and the payment of expenses insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Indemnifying Party.
(iib) The Indemnified Party shall have the right to employ separate counsel and assume its own legal defense in any such action and to participate in the defense thereof, but the fees and expenses of such counsel subsequent to any assumption of the defense by the Indemnifying Party shall not be at the expense of the Indemnifying Party, provide Party unless the employment of such counsel has been specifically authorized in writing by the Indemnifying Party. If the Indemnified Party such information and cooperation with respect to such claim as reasonably determines that there may be a conflict between the positions of the Indemnifying Parties and the Indemnified Party conducting the defense of such action or that there may reasonably require, including, without limitation, making appropriate personnel be legal defenses available to the Indemnified Party different from or in addition to those available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claimParties, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate then counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, for the Indemnified Party must consent in writing shall be entitled to conduct the defense to the entry extent reasonably determined by such counsel to be necessary to protect the interests of any settlementthe Indemnified Party, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if and the Indemnifying Party assumes Parties shall bear the defense legal or other expenses incurred in connection with the conduct of such claim, the defense. The Indemnifying Party shall not be liable for to indemnify any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs settlement of counsel to any such Indemnified action effected without the Indemnifying Party's written consent.
Appears in 2 contracts
Sources: Registration Rights Agreement (Retalix LTD), Registration Rights Agreement (Retalix LTD)
Indemnification Procedures. With respect Each person to any claim made or threatened against a party entitled be indemnified pursuant to indemnification under this Section 9 Article 4 (an the "Indemnified Party")) will, or compulsory process or request or other promptly after its receipt of written notice of the commencement of any loss, claim, damage or liability served upon an Indemnified Party, for which action against such Indemnified Party is or in respect of which indemnity may be entitled to indemnification sought from an indemnifying person under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 Article 4 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify notify the Indemnifying Party in reasonable detail the nature writing of the claim and the amount (or an estimate of the amount) of the claim; commencement thereof, provided, however, that the failure of any Indemnified Party person to provide such give notice to the Indemnifying Party as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 9 Agreement except to the extent that such Indemnifying Party is actually materially and adversely prejudiced by such failure to give notice. If any such action shall be brought against any Indemnified Party and it shall notify an Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to participate therein and, to the extent it may desire, jointly with any other Indemnifying Party similarly notified, to assume the defense thereof with counsel satisfactory to such Indemnified Party, and after notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party will not be liable to such Indemnified Party under this Article 4 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation unless (a) the Indemnified Party shall have employed counsel in an action in which the Indemnified Party and Indemnifying Party are both defendants and there is materially prejudiced a conflict of interest between such parties that would prevent counsel from adequately representing both parties, (b) the Indemnifying Party shall not have employed counsel satisfactory within the exercise of reasonable judgment of the Indemnified Party to represent the Indemnified Party within a reasonable time after the notice of the commencement of the action, or otherwise forfeits rights or defenses by reason (c) the Indemnifying Party has authorized the employment of such failure;
(ii) counsel for the Indemnified Party at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect . The undertaking contained in this Section 4.3 shall be in addition to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, any liabilities which the Indemnifying Party may exercise in its sole discretion and at its expense, have pursuant to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partylaw.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ixc Communications Inc), Registration Rights Agreement (Ixc Communications Inc)
Indemnification Procedures. With respect (a) All claims for indemnification by any party (the “Indemnified Party”) hereunder shall be asserted and resolved as set forth in this Section 9.3. In the event that any written claim or demand for which the party from whom indemnification is sought (an “Indemnifying Party”) would be liable to any claim made or threatened against a party entitled to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party hereunder is asserted against or may sought to be entitled to indemnification under this Section 9collected from any Indemnified Party by a third party, such Indemnified Party shall (or with respect to Indemnified Parties that are directorspromptly, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause but in no event more than fifteen days following such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") ’s receipt of such claim within 10 days after or demand, notify the Indemnifying Party of such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim demand and the amount or the estimated amount thereof to the extent then feasible (or an which estimate shall not be conclusive of the amountfinal amount of such claim and demand) of (the claim“Claim Notice”); provided, however, that failure to give such notification shall not affect the failure of any Indemnified Party indemnification provided hereunder except to provide such notice to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. The Indemnifying Party shall have thirty days from the personal delivery or mailing of the Claim Notice (the “Notice Period”) to notify the Indemnified Party whether or not relieve it desires to defend the Indemnified Party against such claim or demand.
(b) All costs and expenses incurred by the Indemnifying Party of its obligations under this Section 9 except to in defending such claim or demand shall be a liability of, and shall be paid by, the extent Indemnifying Party. Except as hereinafter provided, in the event that the Indemnifying Party is materially prejudiced notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or otherwise forfeits rights demand, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense; provided that (i) the Indemnifying Party shall acknowledge in writing its obligation to indemnify the Indemnified Party for any losses relating thereto (without deduction, offset or defenses limitation by reason operation of such failure;
any provision hereof, other than as provided in Section 9.4 hereof), (ii) the claim or demand does not seek to impose any liability on the Indemnified Party other than for money damages and (iii) the Indemnifying Party shall demonstrate, to the reasonable satisfaction of the Indemnified Party, its financial ability to satisfy its indemnification obligations.
(c) If any Indemnified Party desires to participate in any such defense it may do so at its sole cost and expense; provided, that, the cost and expense of the Indemnifying Party, provide Indemnified Party shall be paid by the Indemnifying Party such information and cooperation with respect to such claim as if (i) the Indemnifying Party may reasonably requirehas so agreed, including, without limitation, making appropriate personnel available to (ii) there exists a conflict of interest between the Indemnifying Party at such reasonable times as and the Indemnified party or (iii) the Indemnifying Party has failed to assume the defense. The Indemnified Party shall not settle a claim or demand for which it seeks or may request;
(iii) in the event suit is brought with respect seek to such claim, upon reasonable prior notice, afford to be indemnified by the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
, unless such settlement (vi) upon reasonable prior noticeis only for a claim of monetary damages and (ii) includes a general and unconditional release of each Indemnifying Party from any liabilities arising out of such claim or demand. The Indemnifying Party shall not settle a claim or demand for which it may be required to provide indemnification to the Indemnified Party without the written consent of the Indemnified Party, afford to unless such settlement (i) is only for a claim of monetary damages and (ii) includes a general and unconditional release of each Indemnified Party from any liabilities arising out of such claim or demand. If the Indemnifying Party elects not to defend the rightIndemnified Party against such claim or demand whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand (so long as it is a claim or demand in respect of which indemnification is available hereunder) or, if the same be contested by the Indemnified Party, then that portion thereof as to which such Indemnifying Party's sole discretion defense is unsuccessful (and at the reasonable costs and expenses pertaining to such Indemnifying Party's sole expense, to assume defense) shall be the defense liability of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes hereunder. To the extent the Indemnifying Party shall direct, control or participate in the defense and appeals or settlement of such claimany third-party claim or demand or participate in the defense or settlement of any third party claim or demand, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of give the Indemnifying Party and its counsel reasonable and non-disruptive access to, during normal business hours, the Indemnified Party or that either an Indemnified Party or relevant business records and other documents, and shall permit them to consult with the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees employees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Contribution and Stock Purchase Agreement, Contribution and Stock Purchase Agreement (Georgia Pacific Corp)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Section 9 Agreement will be asserted and resolved as follows:
(a) A party claiming indemnification under this Agreement (an "Indemnified Party")) shall promptly (and, or compulsory process or request in any event, at least 10 days prior to the due date for any responsive pleadings, filings or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
documents) (i) give written notice to notify the party required to indemnify the Indemnified Party under this Section 9 from whom indemnification is sought (the "Indemnifying Party") of such any third-party claim within 10 days after such claim is made or threatened, which claims asserted against the Indemnified Party ("Third Party Claim") that could give rise to a right of indemnification under this Agreement and (ii) transmit to the Indemnifying Party a written notice shall specify ("Claim Notice") describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim and the amount (or if any), an estimate of the amount) amount of damages attributable to the Third Party Claim and the basis of the claim; provided, however, that the Indemnified Party's request for indemnification under this Agreement. The failure of any Indemnified Party to provide such notice to the Indemnifying Party promptly deliver a Claim Notice shall not relieve the Indemnifying Party of its obligations to the Indemnified Party with respect to the related Third Party Claim. Within 30 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party shall notify the Indemnified Party (i) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 9 except Article XIII with respect to such Third Party Claim or (ii) whether the extent Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled, with the consent of the Indemnified Party. The Indemnifying Party is materially prejudiced hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or otherwise forfeits rights other pleadings that the Indemnifying Party shall deem necessary or appropriate to protect its interests or those of the Indemnified Party and not prejudicial to the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including, without limitation, the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 15.3(b) and shall bear its own costs and expenses with respect to such participation; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnifying Party and the Indemnified Party has been advised by counsel that there may be one or more legal defenses by reason of such failure;
(ii) available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, provide and, upon written notification thereof, the Indemnifying Party such information and cooperation with respect to such claim as shall not have the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, right to assume the defense of such claim, including, without limitation, action on behalf of the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claimIndemnified Party; provided thatfurther, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, that the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatnot, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; , be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the Indemnified Party, which firm shall be designated in writing by the Indemnified Party.
(3c) prior to entering into any final settlement or compromise, such If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 13.3(b), or if the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 13.3(b) but fails diligently and promptly to prosecute or settle the Third Party Claim, then the Indemnified Party shall use its best reasonable efforts in have the light right to defend, at the sole cost and expense of the then-prevailing circumstances to defend such claim; and Indemnifying Party (4) if any the Indemnified Party waives its right is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings, provided, however, that the Indemnified Party may not enter into, without the Indemnifying Party's consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 13.3(c), and the Indemnifying Party shall not be entitled bear its own costs and expenses with respect to appoint counsel such participation; provided, however, that if the named parties to represent any such Indemnified Party nor shall action (including any impleaded parties) include both the Indemnifying Party reimburse such and the Indemnified Party, and the Indemnifying Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnified Party, then the Indemnified Party for may employ separate counsel and, upon written notification thereof, the Indemnified Party shall not have the right to assume the defense of such action on behalf of the Indemnifying Party.
(d) If any costs Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim, the Indemnified Party shall transmit to the Indemnifying Party a written notice (the "Indemnity Notice") describing in reasonable detail the nature of counsel the claim, an estimate of the amount of damages attributable to such claim and the basis of the Indemnified Party's request for indemnification under this Agreement. If the Indemnifying Party does not notify the Indemnified Party within 60 days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such claim, the claim specified by the Indemnified Party in the Indemnity Notice shall be deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has timely disputed such claim, as provided above, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction if the parties do not reach a settlement of such dispute.
(e) Payments of all amounts owing by an Indemnifying Party pursuant to this Article XIII relating to a Third Party Claim shall be made within 30 days after the latest of (i) the settlement of such Third Party Claim, (ii) the expiration of the period for appeal of a final adjudication of such Third Party Claim or (iii) the expiration of the period for appeal of a final adjudication of the Indemnifying Party's liability to the Indemnified Party under this Agreement. Payments of all amounts owing by an Indemnifying Party pursuant to Section 13.3(d) shall be made within 30 days after the later of (i) the expiration of the 60-day Indemnity Notice period or (ii) the expiration of the period for appeal of a final adjudication of the Indemnifying Party's liability to the Indemnified Party under this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Medical Providers Inc), Asset Purchase Agreement (American Medical Providers Inc)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to 16.7.1 All claims for indemnification under this Agreement shall be asserted and resolved pursuant to this Section 9 (an "16.7. Any person claiming indemnification hereunder is hereinafter referred to as the “Indemnified Party"), or compulsory process or request or other notice of ” and any loss, claim, damage or liability served upon an Indemnified person against whom such claims are asserted hereunder is hereinafter referred to as the “Indemnifying Party, .”
16.7.2 In the event that a Party wishes to assert a claim for which such Indemnified Party is or may be entitled to indemnification under this Section 9indemnity hereunder, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to promptness provide such notice to the Indemnifying Party a written notice of the indemnity claim it wishes to assert on behalf of itself or another Indemnified Party, including the specific details of and specific basis under this Agreement for its indemnity claim (a “Claim Notice”). To the extent any Losses for which indemnification is sought are asserted against or sought to be collected from an Indemnified Party by a third party, such Claim Notice shall not relieve include a copy of all papers served on the applicable Indemnified Party with respect to such claim. The Indemnifying Party shall have thirty (30) days from the personal delivery or receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its obligations under this Section 9 except liability hereunder with respect to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
Losses and/or (ii) with respect to any Losses arising out of, associated with, or relating to third party claims, whether or not it desires, at the sole cost and expense of the Indemnifying Party, provide to defend the Indemnified Party against any such Losses. In the event that the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, notifies the Indemnified Party must consent in writing within the Notice Period that it desires to defend the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Indemnified Party assumes the defense of against such claimLosses, the Indemnifying Party shall not be liable for any fees and expenses have the right to defend all appropriate proceedings with counsel of counsel for any its own choosing. If the Indemnified Party incurred thereafter in connection with desires to participate in, but not control, any such claim except that, if such Indemnified Party reasonably determines that counsel designated defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, the Indemnified Party has a conflict of interest due agrees to the conflicting interests of cooperate with the Indemnifying Party and its counsel in contesting any Losses that the Indemnifying Party elects to contest or, if appropriate and related to the claim in question, in making any counterclaims against the third party asserting such Losses, or any cross-complaint against any third party (other than a Seller Indemnified Party, if the Indemnified Party or that either an is a Seller Indemnified Party; and other than a Buyer Indemnified Party, if the Indemnified Party or is a Buyer Indemnified Party). Such cooperation shall include the retention and provision to the Indemnifying Party has defenses of all records and other information that are not available reasonably relevant to the otherlosses at issue. No third party claim that is the subject of indemnification
(i) entails a full and unconditional release of the Indemnified Party (and any other members of the Indemnified Party’s group, such Indemnifying i.e., all Seller Indemnified Parties or all Buyer Indemnified Parties) without any admission or finding of fault or liability and (ii) does not impose on the Indemnified Party shall pay any material non-financial obligation or any financial obligation that is not fully paid by the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Dynamic Offshore Resources, Inc.), Purchase and Sale Agreement (Dynamic Offshore Resources, Inc.)
Indemnification Procedures. With The obligations and liabilities of each indemnifying party hereunder with respect to claims resulting from the assertion of liability by the other party or third parties shall be subject to the following terms and conditions:
(a) If any claim made or threatened against a person shall notify an indemnified party entitled to indemnification under this Section 9 (an the "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or ) with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents any matter which may give rise to a claim for indemnification (a "Claim") against Buyer or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 Sellers (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatenedunder this Section 8, which notice then the Indemnified Party shall specify promptly notify each Indemnifying Party thereof in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claimwriting; provided, however, that no delay on the failure part of any the Indemnified Party to provide such notice to the 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 thereby is prejudiced.
(b) Any Indemnifying Party will have the right to defend the Indemnified Party against the Claim with counsel of its obligations under this Section 9 except choice reasonably satisfactory to the extent Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within 15 days after the Indemnified Party has given notice of the Claim that the Indemnifying Party is materially prejudiced will indemnify the Indemnified Party from and against the entirety (subject to any limitations contained in Section 8) of any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of or otherwise forfeits rights or defenses caused by reason of such failure;
the Claim, (ii) at the expense 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 Claim and fulfill its indemnification obligations hereunder, (iii) the Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Claim is not, in the good faith judgment of the Indemnifying Party, provide likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party such information conducts the defense of the Claim actively and cooperation with respect to such claim diligently and in good faith.
(c) So long as the Indemnifying Party may reasonably requireis conducting the defense of the Claim in accordance with Section 8.3(b) above, including, without limitation, making appropriate personnel available to (i) the Indemnifying Party at such reasonable times as the Indemnifying Indemnified Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in retain separate co-counsel at its sole discretion cost and at its expense, to expense and participate in the investigationdefense of the Claim, defense and settlement of such claim;
(ivii) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or will not consent to the entry of any judgment in or enter into any settlement with respect thereof, in each case to the Claim without the prior written consent of the Indemnifying Party; and
Party (vnot to be withheld unreasonably), and (iii) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must will not consent in writing to the entry of any settlementjudgment or enter into any settlement with respect to the Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably).
(d) In the event any of the conditions in Section 8.3(b) above is or becomes unsatisfied, compromisehowever, or (i) the Indemnified Party may defend against, and consent to the entry of any judgment in or enter into any settlement with respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claimto, the Indemnifying Party shall not be liable for Claim in any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party manner it reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party may deem appropriate (and the Indemnified Party need not consult with, or that either an Indemnified obtain any consent from, any Indemnifying Party or in connection therewith), (ii) the Indemnifying Party has defenses that are not available will remain responsible for any damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Claim to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (fullest extent provided in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partythis Section 8.
Appears in 2 contracts
Sources: Purchase Agreement (Riney Rodger O), Purchase Agreement (Riney Rodger O)
Indemnification Procedures. The following procedures shall govern claims for indemnification under this Article VIII:
(a) All claims for indemnification under this Article VIII (each, an “Indemnification Claim”) shall be asserted and resolved in accordance with this Section 8.5, except that Section 6.3 shall control with respect to Tax Claims.
(b) If a Buyer Indemnified Person or Seller Indemnified Person (an “Indemnified Party”) determines to seek indemnification under this Article VIII with respect to Indemnifiable Claims resulting from the assertion of liability by third parties (a “Third Party Claim”), it shall give notice to the indemnifying Party hereunder (the “Indemnifying Party”) within forty-five (45) days of such Indemnified Party becoming aware of any such Indemnifiable Claim, which notice shall set forth such material information with respect to such Indemnifiable Claim as is then reasonably available to such Indemnified Party. If any such liability is asserted against an Indemnified Party and such Indemnified Party notifies the Indemnifying Party of such liability, the Indemnifying Party shall be entitled, if it so elects by written notice delivered to such Indemnified Party within fifteen (15) Business Days after receiving such Indemnified Party’s notice (the “Response Period”), to assume the defense of such asserted liability with counsel satisfactory to such Indemnified Party; provided, however, that if the Indemnifying Party assumes such defense, the Indemnifying Party shall be deemed to have accepted such claim as a valid Indemnifiable Claim. Notwithstanding the foregoing: (i) such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be payable by such Indemnified Party; (ii) such Indemnified Party shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; and (iii) the rights of such Indemnified Party to be indemnified in respect of indemnifiable claims resulting from the assertion of liability by third parties shall not be adversely affected by its failure to give notice pursuant to the foregoing provisions unless, and, if so, only to the extent that, the Indemnifying Party is materially prejudiced by such failure. With respect to any claim made assertion of liability by a third party that results in an Indemnifiable Claim, the Parties shall make available to each other all relevant information in their possession that is material to any such assertion.
(c) In the event that the Indemnifying Party fails to assume the defense of an Indemnified Party against any such Indemnifiable Claim within the Response Period, the Indemnified Party shall have the right to defend, compromise or threatened against a party settle such Indemnifiable Claim on behalf, for the account, and at the risk of the Indemnifying Party.
(d) Notwithstanding anything in this Section 8.5 to the contrary, the Indemnifying Party will not be entitled to indemnification under this Section 9 (assume control of the defense of an "Indemnified Party")Indemnifiable Claim, or compulsory process or request or other notice and will pay the reasonable fees and expenses of any loss, claim, damage or liability served upon an legal counsel retained by the Indemnified Party, for which if: (i) the Indemnified Party reasonably believes that an adverse determination of such proceeding could be detrimental to or injure the Indemnified Party’s reputation or future business prospects; (ii) the Indemnified Party reasonably believes that there exists or could arise a conflict of interest that, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such proceeding or (iii) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend diligently such claim.
(e) The Indemnifying Party shall not, without such Indemnified Party’s prior written consent, settle or compromise any Indemnifiable Claim or consent to entry of any judgment in respect of any Indemnifiable Claim unless such settlement, compromise or consent involves only the payment of money and includes, as an unconditional term, the giving by the claimant or the plaintiff to such Indemnified Party is or may be entitled to indemnification under this Section 9(and its subsidiaries and Affiliates) an unconditional release from all liability in respect of such Indemnifiable Claim.
(f) In the event any Indemnified Party should have an Indemnifiable Claim against any Indemnifying Party that does not involve a Third Party Claim, such the Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give deliver written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify with reasonable promptness to the Indemnifying Party specifying in reasonable detail the nature of the claim Indemnifiable Claim and the amount (or an estimate of the amount) of the claim; provided, however, that the basis thereof. The failure of by any Indemnified Party so to provide such notice to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 8.5, it being understood that written notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 8.1; provided that, the party entitled to receive such notice was not, as a result of such failure to give prompt written notice, (a) deprived of its obligations right to recover any payment under its applicable insurance coverage, (b) otherwise damaged or prejudiced or (c) deprived of its rights and remedies under this Section 9 except to Agreement. If the extent Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such written notice that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect disputes its liability to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromiseunder this Article VIII, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claimamount thereof, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any claim specified by the Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has written notice shall be conclusively deemed a conflict of interest due to the conflicting interests liability of the Indemnifying Party under this Article VIII, and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements amount of one counsel (in addition such Losses to any local counsel) separate from such Indemnifying Party's own counsel for all the Indemnified Parties in connection with any one action or separate but similar or related actions Party on demand or, in the same jurisdiction arising out case of any written notice in which the amount of the same general allegations claim (or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light portion of the then-prevailing circumstances to defend claim) is estimated, on such later date when the amount of such claim (or such portion of such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyis determined.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Lightpath Technologies Inc), Membership Interest Purchase Agreement (Lightpath Technologies Inc)
Indemnification Procedures. With respect In the event that any claim or demand by a third party for which an indemnifying party, Parent or Purchaser, as the case may be (an “Indemnifying Party”), may be liable to any claim made or threatened against a party entitled to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party hereunder (a “Claim”) is asserted against or may sought to be entitled to indemnification under this Section 9collected from any Indemnified Party by a third party, such Indemnified Party shall as promptly as practicable notify the Indemnifying Party in writing of such Claim and the amount or the estimated amount thereof and such notice shall state with reasonable specificity the basis, if known, under which the claim is made (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees the “Claim Notice”). The failure on the part of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of to give any such claim within 10 days after such claim is made or threatened, which notice shall specify Claim Notice in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party a reasonably prompt manner shall not relieve the Indemnifying Party of its obligations under this Section 9 except any indemnification obligation hereunder unless, and only to the extent that that, the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall have forty-five (45) days from the delivery of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (a) whether or otherwise forfeits rights or defenses by reason of such failure;
(ii) at not the expense Indemnifying Party disputes the liability of the Indemnifying Party, provide Party to the Indemnifying Indemnified Party such information and cooperation hereunder with respect to such claim Claim and (b) whether or not it desires to defend the Indemnified Party against such Claim; any failure to so notify the Indemnified Party within such 45-day period shall be deemed an agreement that the Indemnified Party shall have the sole power to direct and control the defense of such Claim. Except as hereinafter provided, in the event that the Indemnifying Party may reasonably requirenotifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such Claim, including, without limitation, making appropriate personnel available to the Indemnifying Party at shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such reasonable times as defense. Notwithstanding the foregoing, the Indemnified Party, during the period the Indemnifying Party is determining whether to elect to assume the defense of a matter covered by this Section 6.4, may request;
(iii) in the event suit is brought take such reasonable actions as it deems necessary to preserve any and all rights with respect to the matter, without such claim, upon reasonable prior notice, afford actions being construed as a waiver of the Indemnified Party’s rights to defense and indemnification pursuant to this Agreement. The Indemnified Party shall not settle a Claim for which it is indemnified by the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to unless the Indemnifying Party elects not to defend the rightIndemnified Party against such Claim. In any event, the Indemnified Party shall have the sole right to defend, settle or compromise any Claim with respect to which it has agreed in writing to waive its right to indemnification pursuant to this Agreement with respect to attorneys’ and consultants’ fees and 50% of the amount of any settlement or judgment in connection with such Claim. To the extent the Indemnifying Party shall direct, control or participate in the defense or settlement of any third party Claim or demand, the Indemnified Party will give the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party's sole discretion . The Indemnified Party shall use its commercially reasonable best efforts in the defense of all claims hereunder. Any dispute regarding the obligation of a party hereto to indemnify, defend and at such Indemnifying Party's sole expensehold harmless another party with respect to a claimed Loss shall be resolved by appropriate legal proceedings, to assume which may remain pending during or after the defense of such claimclaimed Loss. Notwithstanding any of the foregoing, includingwith respect to any Claims regarding the ownership, without limitationvalidity, or scope of the Purchased IP Rights for which Purchaser seeks indemnification under this Agreement: (y) Purchaser shall control all correspondence with, and any legal or other proceedings before, any Governmental Authority (other than judicial authority), such as by way of example only, the right to designate counsel United States Patent and to control all negotiationsTrademark Office, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter Parent’s indemnification obligations in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due Claim shall be limited to the conflicting interests 50% of the Indemnifying Party amount of attorneys’ and consultants’ fees incurred by Purchaser in such proceedings; and (z) in the Indemnified Party course of Parent’s defense or settlement of such Claims by third parties with respect to which Parent is controlling the defense hereunder, Parent may not settle or compromise any Claim, or make any admission or stipulation, that either an Indemnified Party affects the scope, validity, ownership, license or control of any Purchased IP Rights, without the Indemnifying Party has defenses that are not available to the otherspecific prior written consent of Purchaser on a case-by-case basis, such Indemnifying Party consent not to be unreasonably conditioned, delayed or withheld; provided, that if Purchaser conditions or withholds consent, Purchaser shall pay the reasonable fees assume control with respect to such Claim, and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties Parent’s indemnification obligations in connection with any one action or separate but similar or related actions in the same jurisdiction arising out such Claim shall be limited to 50% of the same general allegations or circumstances; (3) prior to entering into amount of further attorneys’ and consultants’ fees incurred by Purchaser in such action and 50% of the amount of any final settlement or compromise, judgment in connection with such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if Claim. In any Indemnified Party waives its right to indemnification hereunderevent, the Indemnifying Party Party’s liability hereunder shall not be entitled subject to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partylimitations set forth in Sections 6.2(b) and 6.3(b).
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Medical Systems Holdings Inc), Asset Purchase Agreement (Conceptus Inc)
Indemnification Procedures. With respect to (a) Whenever any claim made or threatened against a shall arise for indemnification hereunder, the party entitled to indemnification under this Section 9 (an "the “Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ”) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give promptly provide written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after to the other party (the “Indemnifying Party”). The failure to give such claim is made or threatened, which prompt written notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; providednot, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 indemnification obligations, except and only to the extent that the Indemnifying Party is materially actually prejudiced or otherwise forfeits rights or defenses by reason of such delay or failure;.
(iib) at the expense In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action by a person or entity who is not a party to this Agreement (a “Third Party Claim”), the Indemnifying Party, provide the Indemnifying Party such information at its sole cost and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available expense and upon written notice to the Indemnifying Party at Indemnified Party, may assume the defense of any such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought Action with respect to such claim, upon reasonable prior notice, afford counsel reasonably satisfactory to the Indemnifying Indemnified Party. The Indemnified Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, shall be entitled to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission Action, with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to its counsel and at its own cost and expense. If the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to does not assume the defense of any such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claimAction, the Indemnified Party must consent may, but shall not be obligated to, defend against such Action in writing such manner as it may deem appropriate, including, but not limited to, settling such Action, after giving notice of it to the entry Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any settlement, compromise, or entry of judgment in respect thereof damages resulting therefrom. The Indemnifying Party shall not settle any Action without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); .
(2c) if Any Action by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party assumes notice that describes the defense Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such claimnotice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30 day period, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with deemed to have approved such claim except thatclaim, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due subject to the conflicting interests of the Indemnifying Party and limitation set forth in Section 9.04, in which case the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not shall be free to pursue such remedies as may be available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party, including causing such Loss to be paid from Escrow, on the terms and subject to the provisions of this Agreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (TerrAscend Corp.), Securities Purchase Agreement
Indemnification Procedures. With respect (a) PES Inc. (for purposes of the indemnification provisions set forth in this Article III, the “Indemnified Party”) shall give Carlyle PES and the Carlyle Entities, as applicable (for purposes of the indemnification provisions set forth in this Article III, a “Indemnifying Party”), prompt written notice of any matter which it has determined has given or would reasonably be expected to any claim made or threatened against give rise to a party entitled to right of indemnification under this Section 9 (an "Indemnified Party")Agreement, or compulsory process or request or other notice containing a reference to the provisions of any loss, claim, damage or liability served upon an Indemnified Party, for this Agreement in respect of which such Indemnified Party right of indemnification is claimed or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claimarises; provided, however, that the failure of any Indemnified Party to provide such notice shall not release an Indemnifying Party from its obligations under Section 3.4 except to the extent such Indemnifying Party is actually prejudiced by such failure.
(b) If any third party shall notify the Indemnified Party with respect to a claim under Section 3.4 for which the Indemnified Party may seek indemnification under this Agreement, then the Indemnified Party shall promptly (and in any event within ten (10) business days after receiving notice of the third-party claim or the commencement of litigation with respect thereto) notify the Indemnifying Party thereof in writing and specifying the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from its obligations under Section 3.4 except to the extent the Indemnifying Party is actually prejudiced by such failure.
(c) The Indemnified Party may defend against any third-party claim in any manner it may reasonably deem appropriate and in connection therewith, the Indemnifying Party shall not relieve be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party; provided, however, the Indemnifying Party shall be entitled to participate in the defense of its obligations under this Section 9 except any third-party claim and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party reasonably satisfactory to the extent Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within thirty (30) days after the Indemnified Party has given notice of such claim that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of will indemnify the Indemnified Party from and against the Losses relating to such failure;
third-party claim; (ii) such third party claim does not seek injunctive or other equitable relief that if determined adversely to the Indemnified Party would reasonably be expected to have material adverse effects on the Indemnified Party; and (iii) the Indemnifying Party conducts the defense of such claim diligently.
(d) If the Indemnifying Party is entitled pursuant to this Section 3.5 and elects to assume the defense of any such third-party claim, (i) it shall keep the Indemnified Parties advised of the status of such third-party claim and the defense thereof on a reasonably current basis and shall consider in good faith the recommendations made by the Indemnified Parties with respect thereto and (ii) the Indemnified Party shall be entitled to participate in the defense of any such third-party claim and to employ separate counsel of its choice for such purpose at its sole cost and expense, it being understood, however, that the expense Indemnifying Party shall continue to control such defense; provided, however, that notwithstanding the foregoing, the Indemnifying Party shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnified Party if (x) the Indemnified Party’s outside counsel shall have reasonably concluded and advised in writing (with a copy to the Indemnifying Party, provide ) that there are defenses available to the Indemnifying Indemnified Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel that are different from those available to the Indemnifying Party at such reasonable times as that are reasonably likely to be asserted, or (y) the Indemnifying Party may request;
Indemnified Party’s outside counsel shall have advised in writing (iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford a copy to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(ivParty) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has there is a conflict of interest due that would make it inappropriate under applicable standards of professional conduct to the conflicting interests of have common counsel for the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available Party. Notwithstanding anything to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (contrary in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderthis Agreement, the Indemnifying Party will not be permitted to settle, compromise, take any corrective or remedial action or enter into an agreed judgment or consent decree, in each case, that subjects the Indemnified Party to any criminal liability, requires an admission of guilt or wrongdoing on the part of the Indemnified Party or imposes any unreasonable continuing obligation on or requires any payment from the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyunreasonably withheld.
Appears in 2 contracts
Sources: Contribution, Assignment and Assumption Agreement (Philadelphia Energy Solutions Inc.), Contribution, Assignment and Assumption Agreement (Philadelphia Energy Solutions Inc.)
Indemnification Procedures. With The obligations and liabilities of each indemnifying Party hereunder with respect to any claims resulting from the assertion of liability by another Party or third parties shall be subject to the following terms and conditions:
(a) Any Person (the “Indemnified Party”) making a claim made for indemnification (a “Claim”) against the Buyer Group or threatened against a party entitled to indemnification the Majority Sellers (the “Indemnifying Party”) under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice 7 shall notify each Indemnifying Party thereof in writing with reasonable details of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify a Claim promptly after the Indemnified Party under this Section 9 (discovers the "Indemnifying Party") of liability, obligation or facts giving rise to such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claimClaim; provided, however, that the failure of any the Indemnified Party to provide such prompt notice to the Indemnifying Party of a Claim as contemplated by this Section 7.3(a) shall not relieve affect the Indemnifying right of the Indemnified Party of its obligations under to be indemnified pursuant to this Section 9 Article 7 for such Claim except to the extent that such failure materially prejudices the ability of the Indemnifying Party to defend such Claim.
(b) Any Indemnifying Party will have the right to defend the Indemnified Party against any third party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as the Indemnifying Party conducts the defense of the Claim actively and diligently and in good faith.
(c) So long as the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason conducting the defense of such failure;
a third party Claim in accordance with Section 7.3(b), (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Claim, and (ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or will not consent to the entry of any judgment in or enter into any settlement with respect thereof, in each case to the Claim without the prior written consent of the Indemnifying Party; and
Indemnified Party (vnot to be withheld or delayed unreasonably) upon reasonable prior notice, afford to the Indemnifying Party the right, in unless such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense judgment or settlement contains an unconditional release of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must and does not impose any injunctive or other equitable relief against (or any other obligation on) the Indemnified Party.
(d) In the event any of the conditions in Section 7.3(b) is or becomes unsatisfied, however, (i) the Indemnified Party may defend against, and consent in writing to the entry of any settlementjudgment or enter into any settlement with respect to, compromisea third party Claim in any manner it reasonably may deem appropriate (the Indemnified Party need not obtain any consent from any Indemnifying Party in connection therewith, or entry of judgment in respect thereof but, acting reasonably, will keep informed and consult with the Indemnifying Party) and (which consent shall not be unreasonably withheld); (2ii) if the Indemnifying Party assumes will remain responsible for any Damages the defense of such claimIndemnified Party may suffer arising out of, relating to or based upon the Claim to the fullest extent provided in this Section 7; provided, that in no event shall an Indemnifying Party shall not be liable responsible for any the fees and expenses of counsel for any Indemnified Party incurred thereafter more than one law firm, except in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has case of a conflict of interest due interest, or where required to the conflicting interests address local law issues or specialized areas of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partylaw.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Live Nation, Inc.)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to A Party seeking indemnification under this Section 9 for itself or any of its Affiliates or any of its or their respective officers, directors, members, managers, employees, agents and representatives (an "collectively in this capacity, the “Indemnified Party")”) shall promptly notify the Party from whom indemnification is sought (in this capacity, or compulsory process or request or other notice the “Indemnitor”) of any loss, claim, damage or liability served upon an Indemnified Party, for Liability in respect of which such Indemnified Party is or may be entitled intends to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claimindemnification; provided, however, that the failure of any Indemnified Party to provide such notice to so notify the Indemnifying Party Indemnitor shall not relieve affect the Indemnifying Party of its obligations under this Section 9 Indemnified Party’s rights to indemnification hereunder except to the extent that the Indemnifying Party Indemnitor is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with . With respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available any Liabilities that relate to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such third party claim, the Indemnified Party must consent shall permit the Indemnitor to control the defense of any such Liabilities; provided, however, if the Indemnified Party reasonably determines that the joint representation of the Indemnified Party and the Indemnitor by a single counsel would result in a conflict of interest arising out of the joint representation by counsel selected by the Indemnitor of the interests of the Indemnitor and the Indemnified Party, the Indemnitor shall be entitled to engage separate counsel to represent the Indemnified Party (at the Indemnitor’s sole cost and expense) and, if the Indemnitor fails to do so, the Indemnitor shall not be entitled to assume the Indemnified Party’s defense of such Liability. If the Indemnitor assumes the defense of any Liability, the Indemnitor shall consult with the Indemnified Party for the purpose of allowing the Indemnified Party to participate in such defense, but in such case the legal expenses of the Indemnified Party incurred as a result of such participation shall be paid by the Indemnified Party. With respect to any Proceeding for which the Indemnitor has assumed the defense of an Indemnified Party, the Indemnitor shall promptly inform the applicable Indemnified Party of all material developments related thereto, including copying such Indemnified Party on all pleadings, filings and other correspondence relating thereto. If the Indemnitor fails to assume and defend a Liability or if, after commencing or undertaking any such defense, the Indemnitor fails to prosecute such Liability, the Indemnified Party shall have the right to undertake the defense or settlement thereof. With respect to any Liabilities that relate to a third party claim, the Indemnified Party shall have the right to settle such Liabilities, provided the Indemnified Party consents in writing to the entry of any such settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Distribution, License and Manufacturing Agreement, Distribution, License and Manufacturing Agreement (Remedent, Inc.)
Indemnification Procedures. With respect to (a) Promptly after the receipt by any claim made or threatened against Indemnified Party of a party entitled to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon Third Party Claim that an Indemnified Party, for which such Indemnified Party is or may seeks to be entitled to indemnification indemnified under this Section 9Agreement, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice of such Third Party Claim to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify stating in reasonable detail the nature and basis of each allegation made in the claim Third Party Claim and the amount (or an estimate of potential Indemnified Losses with respect to each allegation, to the extent known, along with copies of the amount) relevant documents received by the Indemnified Party evidencing the Third Party Claim and the basis for indemnification sought. Failure of the claim; provided, however, that the failure of any Indemnified Party to provide give such notice to the Indemnifying Party shall not relieve the Indemnifying Party from liability on account of its obligations under this Section 9 indemnification, except if and only to the extent that the Indemnifying Party is materially actually prejudiced by such failure or otherwise forfeits rights or defenses by reason of such failure;
(ii) at delay. Thereafter, the expense of Indemnified Party shall deliver to the Indemnifying Party, provide promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. The Indemnifying Party such information and cooperation shall have the right to assume the defense of the Indemnified Party with respect to such claim Third Party Claim upon written notice to the Indemnified Party delivered within [***] after receipt of the particular notice from the Indemnified Party. So long as the Indemnifying Party has assumed the defense of the Third Party Claim in accordance herewith and notified the Indemnified Party in writing thereof, (i) the Indemnified Party may reasonably requireretain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, including, without limitation, making appropriate personnel available to it being understood that the Indemnifying Party at shall pay all reasonable costs and expenses of counsel for the Indemnified Party after such reasonable times time as the Indemnified Party has notified the Indemnifying Party of such Third Party Claim and prior to such time as the Indemnifying Party may request;
has notified the Indemnified Party that it has assumed the defense of such Third Party Claim, (iiiii) the Indemnified Party shall not file any papers or, other than in the event suit is brought connection with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and a settlement of such claim;
(iv) subject to clause (v) belowthe Third Party Claim, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
Party (vnot to be unreasonably withheld, conditioned or delayed) upon reasonable prior notice, afford to and (iii) the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must will not consent in writing to the entry of any settlementjudgment or enter into any settlement with respect to the Third Party Claim (other than a judgment or settlement that is solely for money damages and is accompanied by a release of all indemnifiable claims against the Indemnified Party) without the prior written consent of the Indemnified Party (not to be unreasonably withheld, compromiseconditioned or delayed). Whether or not the Indemnifying Party shall have assumed the defense of the Indemnified Party for a Third Party Claim, or such Indemnifying Party shall not be obligated to indemnify and hold harmless the Indemnified Party hereunder for any consent to the entry of judgment in or settlement entered into with respect thereof (to such Third Party Claim without the Indemnifying Party’s prior written consent, which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party conditioned or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partydelayed.
Appears in 2 contracts
Sources: Supply Agreement (Micron Technology Inc), Supply Agreement (Micron Technology Inc)
Indemnification Procedures. With respect to 8.5.1 A claim for indemnification for any claim made matter not involving a Third Party Claim may be asserted by prompt notice (a “Claim Notice”) by the Buyer Indemnified Party or threatened against a party entitled to the Seller Indemnified Party seeking indemnification under this Section 9 (an "the “Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i”) give written notice to the party required to indemnify the Indemnified Party under this Section 9 from whom indemnification is sought (the "“Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim”); provided, however, that the failure of any Indemnified Party to provide such notice to so notify the Indemnifying Party shall not relieve preclude the Indemnifying Indemnified Party of its obligations under from any indemnification which it may claim in accordance with this Section 9 8 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason can demonstrate actual loss and prejudice as a result of such failure;. The Indemnifying Party shall, within 30 days after its receipt of a Claim Notice, notify the Indemnified Party in writing whether the Indemnifying Party admits or disputes the claim described in the Claim Notice. If the Indemnifying Party gives written notice that it admits the indemnification claim described in the Claim Notice, then the Indemnified Party shall be entitled to indemnification pursuant to the provisions of this Section 8, and subject to the limitations hereof, with respect to the estimated amount of Losses stated in the Claim Notice. If the Indemnifying Party notifies the Indemnified Party in writing that it disputes the claim for indemnification, or that it admits the entitlement of the Indemnified Party to indemnification under this Section 8 with respect thereto but disputes the amount of the Losses in connection therewith, then in either of such cases the indemnification claim described in the Claim Notice shall be a disputed indemnification claim that must be resolved by settlement between the Indemnified Party and the Indemnifying Party or by Proceedings commenced in an appropriate court of competent jurisdiction by either the Indemnifying Party or the Indemnified Party or by any other mutually agreeable method.
8.5.2 In the event that any Proceedings shall be instituted or that any claim or demand shall be asserted by any third party in respect of which indemnification may be sought under Section 8.3 (iia “Third Party Claim”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of the assertion of such Third Party Claim. The failure of the Indemnified Party to give timely notice of any Third Party Claim shall not release, waive, or otherwise affect the Indemnifying Party’s obligations with respect thereto, except to the extent that the Indemnifying Party can demonstrate actual loss and prejudice as a result of such failure. Subject to the provisions of this Section 8.5, the Indemnifying Party shall have the right, at its sole expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the Indemnified Party, and to defend against, negotiate, settle, or otherwise deal with any Third Party Claim which relates to any Losses indemnified by it hereunder; provided, however, that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party as provided hereunder. If the Indemnifying Party elects to defend against, negotiate, settle, or otherwise deal with any Third Party Claim which relates to any Losses indemnified by it hereunder, it shall within 10 days prior to the time any response to a Third Party Claim is required, and in any event within thirty days of the Indemnified Party’s receipt of written notice of the assertion of such Third Party Claim, notify the Indemnified Party of its intent to do so; provided, however, that the Indemnifying Party must conduct its defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard. If the Indemnifying Party (a) elects not to defend against, negotiate, settle, or otherwise deal with any Third Party Claim which relates to any Losses indemnified by it hereunder, (b) fails to notify the Indemnified Party of its election as herein provided, or (c) contests its obligation to indemnify the Indemnified Party for such Losses under this Agreement, the Indemnified Party shall defend against, negotiate, settle, or otherwise deal with such Third Party Claim in good faith and, upon UNIT PURCHASE AGREEMENT 69 reasonable request of the Indemnifying Party, shall inform such Indemnifying Party of material developments with respect to such Third Party Claim and shall permit the Indemnifying Party to consult with the counsel for the Indemnified Party (but only to the extent such communications do not result in the loss of any privilege) regarding such Third Party Claim. If the Indemnified Party defends any Third Party Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the expenses of defending such Third Party Claim upon submission of periodic bills. If the Indemnifying Party shall assume the defense of any Third Party Claim, the Indemnified Party may participate, at his or its own expense, in the defense of such Third Party Claim; provided, however, that the Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying PartyParty if (x) so requested by the Indemnifying Party to participate or (y) in the reasonable opinion of either party’s counsel, provide a material conflict exists, or a potential material conflict may be reasonably expected to exist, between the Indemnified Party and the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate that one counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claimcould not effectively represent both parties’ interest; provided thatfurther, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, that the Indemnifying Party shall not be liable required to pay for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with more than one such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to plus any appropriate local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action Third Party Claim. The Parties agree to provide reasonable access to each other Party to such documents and information as may reasonably be requested in connection with the defense, negotiation, or separate but similar or related actions settlement of any such Third Party Claim. Notwithstanding anything in this Section 8.5 to the same jurisdiction arising out contrary, neither the Indemnifying Party nor the Indemnified Party shall, without the written consent of the same general allegations other, settle or circumstances; compromise any Third Party Claim (3including any settlement that includes equitable remedies) prior or permit a default or consent to entering into entry of any final settlement judgment unless the claimant (or compromise, claimants) and such party provide to such other party an unqualified release from all Losses in respect of the Third Party Claim. If the Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if makes any Indemnified payment on any Third Party waives its right to indemnification hereunderClaim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party with respect to such Third Party Claim.
8.5.3 If the Seller reasonably determines that any member of the Company Group has a claim or cause of action, or in connection with the defense of any Third Party Claim, a defense or counterclaim, against a third party primarily relating to any transfer, sale or disposition, prior to the Closing, of equity or assets outside the ordinary course of business by any member of the Company Group to such third party, or primarily relating to any Excluded Assets, the Buyer shall, and shall cause appropriate members of the Company Group for so long as such members are Governance Controlled Affiliates of the Buyer to, use commercially reasonable efforts to cooperate with the Seller, at the Seller’s sole cost and expense, in the UNIT PURCHASE AGREEMENT 70 assertion, litigation, negotiation and settlement of such claim, cause of action, defense or counterclaim, for the benefit of and as reasonably directed by the Seller, including by providing access to documents and information reasonably requested in connection therewith. To the extent such documents and information are subject to an attorney-client or other privilege, then such access shall nonetheless be provided, but only with respect to such documents and information in existence at the Closing and solely to the extent that a joint defense agreement or other arrangement reasonably satisfactory to the Parties has been entered into such that such privilege shall not be entitled lost or waived by virtue of such access. In the event such claim, cause of action, defense or counterclaim relates to appoint counsel a matter which has given rise to represent an indemnifiable Loss of any Buyer Indemnified Party, the Buyer and the Company Group shall not be required to provide such cooperation or access unless and until the Seller has made the acknowledgement pursuant to Section 8.5.2 with respect to such matter and is providing indemnification in accordance herewith, and the proceeds of any such claim or cause of action shall first be applied to satisfy the indemnification of such Loss and any other indemnifiable Losses for as to which notice has been given pursuant hereto. For the avoidance of doubt, such commercially reasonable efforts shall not include any obligation to take any action that, in the reasonable and good faith judgment of the Buyer or any member of the Company Group or their respective Affiliates, would reasonably be expected to jeopardize any material relationship with any counterparty of the Buyer, any member of the Company Group or their respective Affiliates, or any Affiliates of such counterparty, or result in any material risk of Liability to, or the occurrence or worsening of any Proceeding involving, Buyer, any member of the Company Group or their respective Affiliates.
8.5.4 After (a) any final decision, judgment, or award shall have been rendered by a Governmental Body of competent jurisdiction and the expiration of the time in which to appeal therefrom, (b) a settlement shall have been consummated, or (c) the Indemnified Party nor shall and the Indemnifying Party reimburse such shall have arrived at a mutually binding agreement, the Indemnified Party for shall forward to the Indemnifying Party notice of any costs of counsel sums due and owing by the Indemnifying Party pursuant to this Agreement with respect to such Indemnified Partymatter.
Appears in 2 contracts
Sources: Unit Purchase Agreement, Unit Purchase Agreement (Access Midstream Partners Lp)
Indemnification Procedures. With respect to All claims for indemnification under this Article V (“Claims”) shall be asserted and resolved as follows:
(a) In the event that any claim made or threatened against a party Person entitled to indemnification under this Section 9 hereunder (an "the “Indemnified Party"”) has a Claim against any Party obligated to provide indemnification pursuant to Section 5.1 or 5.2 (the “Indemnifying Party”) which has been asserted against an Indemnified Party by a third party (a “Third Party Claim”), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party the following provisions shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):apply:
(i) give written notice to the party required to indemnify the The Indemnified Party under this Section 9 (shall with reasonable promptness notify the "Indemnifying Party") Party of such claim within 10 days after such claim is made or threatenedThird Party Claim, which notice shall specify specifying in reasonable detail (to the extent then known) the nature of the claim such Third Party Claim and the amount or the estimated amount thereof to the extent then feasible (or an which estimate shall not be conclusive of the amountfinal amount of such Third Party Claim) of (the claim; provided, however, that the “Claim Notice”). The Indemnified Party’s failure to give reasonably prompt notice as required by this Section 5.5 of any Indemnified Third Party Claim which may give rise to provide such notice to the Indemnifying Party a right of indemnification hereunder shall not relieve the Indemnifying Party of its obligations under this Section 9 any Liability which the Indemnifying Party may have to the Indemnified Party, except to the extent that the failure to give such notice materially and adversely prejudiced the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;Party.
(ii) If any Indemnified Party asserts a Claim involving a Third Party Claim, the Indemnifying Party shall, within fifteen (15) days from delivery of the Claim Notice (the “Notice Period”), notify the Indemnified Party (A) whether or not such Indemnifying Party disputes the liability to the Indemnified Party hereunder with respect to such Third Party Claim and (B) if such Indemnifying Party does not dispute such liability, whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, provide to defend against such Third Party Claim, provided that the Indemnified Party is hereby authorized (but not obligated) prior to and during the Notice Period to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect the Indemnified Party’s interests. If, and for so long as, (x) the Indemnifying Party within the Notice Period agrees in writing to fully indemnify the Indemnified Party for the amount of such information Claim and cooperation the Indemnifying Party provides evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s ability to pay the amount claimed in such Third Party Claim and (y) the Third Party Claim does not (1) involve criminal liability or any admission of wrongdoing, (2) seek equitable relief or any other non-monetary remedy against the Indemnified Party or (3) involve any Governmental Authority as a party thereto, then except as hereinafter provided, such Indemnifying Party shall have the right to defend against such Third Party Claim by appropriate proceedings with respect legal counsel reasonably acceptable to the Indemnified Party, which proceedings shall be promptly settled or diligently prosecuted by such claim as Party to a final conclusion; provided that, unless the Indemnified Party otherwise agrees in writing, the Indemnifying Party may reasonably requirenot settle any matter (in whole or in part) unless such settlement (I) includes a complete and unconditional release of the Indemnified Party and its Affiliates in respect of the Third Party Claim, including, without limitation, making appropriate personnel available (II) involves no admission of wrongdoing by the Indemnified Party or its Affiliates and (III) excludes any injunctive or non-monetary relief applicable to the Indemnifying Indemnified Party at or its Affiliates. If the Indemnified Party desires to participate in, but not control, any such reasonable times as defense or settlement the Indemnifying Indemnified Party may request;do so at its sole cost and expense.
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to If (A) the Indemnifying Party elects not to defend the rightIndemnified Party against such Third Party Claim, which or fails to promptly settle or diligently defend such claims, or (B) the terms of this Agreement do not permit the Indemnifying Party to defend the Indemnified Party against such Third Party Claim, or (C) the Indemnified Party advises that there are issues that raise actual or potential conflicts of interest between the Indemnifying Party and the Indemnified Party, or (D) the Indemnified Party has different or additional defenses available to it, then the Indemnified Party may exercise in its sole discretion and at its expense, to participate defend against any such Third Party Claim in the investigation, defense Indemnified Party’s sole and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such absolute discretion. The Indemnified Party shall not agree to unindemnified liability) nor permit a default any settlement of, or consent to the entry of any judgment in respect thereofarising from, in each case any such Third Party Claim without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); , conditioned or delayed.
(2b) if Notwithstanding anything to the Indemnifying contrary herein, an Indemnified Party assumes may make a claim hereunder even where the defense Indemnified Party has not yet suffered Losses or where the full amount of such claimany Losses is not yet known, provided the Indemnifying Party shall not be liable Claim Notice sets forth the specific basis for any fees and expenses such claim to the extent then feasible.
(c) Notwithstanding anything to the contrary in this Agreement, if a third party asserts (other than by means of counsel for a lawsuit) that any Indemnified Party incurred thereafter is liable to such third party for a monetary or other obligation which may constitute or result in connection with Losses for which such claim except thatIndemnified Party may be entitled to indemnification pursuant to this Article V, if and such Indemnified Party reasonably determines that counsel designated by it has a valid business reason to fulfill such obligation, then (i) such Indemnified Party shall be entitled to satisfy such obligation, without prior notice to or consent from the Indemnifying Party, (ii) such Indemnified Party has may subsequently make a conflict claim for indemnification in accordance with the provisions of interest due this Article V, and (iii) the Indemnified Party shall be reimbursed, in accordance with the provisions of this Article V, for any such Losses for which it is entitled to indemnification pursuant to this Article V (subject to the conflicting interests right of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use dispute its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyobligation under this Article V).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Cynosure Inc)
Indemnification Procedures. With respect (a) Any Indemnified Person making a claim for indemnification pursuant to any claim made Section 7.2 or threatened against a 7.3 above must give the party entitled to from whom indemnification under this Section 9 is sought (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") written notice of such claim within 10 days after describing such claim is made or threatened, which notice shall specify in with reasonable detail particularity and the nature and amount of such Loss to the extent that the nature and amount of such Loss is known at such time) (an "Indemnification Claim Notice") promptly after the Indemnified Party receives any written notice of any action, lawsuit, proceeding, investigation or other claim and (a "Proceeding") against or involving the amount (Indemnified Party by a Governmental Authority or an estimate of other third party or otherwise discovers the amount) of the claimliability, obligations or facts giving rise to such claim for indemnification; provided, however, provided that the failure of any Indemnified Party to provide such notice to the notify or delay in notifying an Indemnifying Party shall will not relieve the Indemnifying Party of its obligations under this pursuant to Section 9 7.2 or 7.3, as applicable, except to the extent that (and only to the extent that) such failure shall have caused the damages for which the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of obligated to be greater than such failure;damages would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder.
(iib) at The Indemnifying Party shall have 30 days from the expense personal delivery or mailing of the Indemnification Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the Indemnifying Party disputes the liability of the Indemnifying Party, provide Party to the Indemnifying Indemnified Party such information and cooperation hereunder with respect to such claim as or demand and (ii) whether or not it desires to defend the Indemnified Party against such claim or demand.
(c) If (i) the Indemnifying Party may reasonably requireagrees in writing to be, including, without limitation, making appropriate personnel available to responsible for the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement full amount of such claim;
Loss, and (ivii) subject the claim for indemnification does not relate to clause a matter (vA) belowthat, neither incur any material expense if determined adversely, could reasonably be expected to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions expose the failure to make of which would expose such Indemnified Party to unindemnified liabilitycriminal prosecution or penalties, (B) nor permit that, if determined adversely, could reasonably be expected to result in the imposition of a default consent order, injunction or consent to decree which would restrict the entry activity or conduct of the Indemnified Party or any judgment in respect Affiliate thereof, or (C) for which the Indemnified Party shall have reasonably concluded, in each case without the prior written consent of good faith, after consultation with the Indemnifying Party; and
(v) upon reasonable prior notice, afford that such representation is likely to result in a conflict of interest or materially jeopardize the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense viability of such claimdefense, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, then the Indemnifying Party shall not be liable for any fees have the right to defend the Indemnified Party by appropriate proceedings and expenses of counsel for shall have the sole power to direct and control such defense. If any Indemnified Party incurred thereafter desires to participate in connection with any such claim except thatdefense, if such Indemnified Party reasonably determines that counsel designated by the it may do so at its sole cost and expense. The Indemnifying Party has a conflict in no event shall have any right to control (as opposed to participate in pursuant to Section 7.4(d) hereof) the defense of interest due to the conflicting interests of the Indemnifying Party any claim and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements expenses of one counsel (in addition to any local counsel) separate from such Indemnifying the Indemnified Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out defense of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.claim if:
Appears in 2 contracts
Sources: Contribution Agreement (Pca Valdosta Corp), Contribution Agreement (Tenneco Inc /De)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to Any Person seeking indemnification under this Section 9 Agreement (an "the “Indemnified Party"), or compulsory process or request or ”) shall give prompt written notice (a “Notice of Claim”) to such other notice applicable Persons against whom such claim is asserted (the “Indemnifying Party”) such indemnification claim. Each Notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party Claim shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the basis for such claim or demand, setting forth the nature of the claim or demand in reasonable detail and (ii) specify in reasonable detail the amount (of indemnifiable Losses or an a good faith estimate of the amount) potential indemnifiable Losses against which Indemnified Party seeks indemnification in connection with such Notice of Claim (the “Quantified Losses”). The failure of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 any obligation hereunder except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason determines that the defense of such failure;
(ii) claim or demand is prejudiced by the failure to give such notice. The Indemnifying Party shall have the right to defend at its own cost and through counsel of its own choosing, reasonably satisfactory to the expense of the Indemnifying Indemnified Party, provide any third-party claim or demand set forth in a Notice of Claim giving rise to such claim for indemnification, unless the Indemnified Party has determined in good faith that joint representation would result in an actual conflict of interest between the Indemnifying Party such information and cooperation with respect to such claim as the Indemnified Party. In the event the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available undertakes to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to compromise or defend against nor release or settle any such claim or make demand, it shall promptly (and in any admission with respect thereto event, no later than fifteen (other than routine or incontestable admissions or factual admissions 15) days after receipt of the failure to make Notice of which would expose such Claim) notify the Indemnified Party in writing of its intention to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to do so. The Indemnified Party shall cooperate with the Indemnifying Party the right, and its counsel in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claimthird-party claim or demand; provided, including, without limitation, the right to designate counsel and to control that all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, reasonable out-of-pocket expenses incurred by the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if paid by the Indemnifying Party assumes the defense of such claim, the Indemnifying Party. The Indemnified Party shall not be liable for any fees and legal or other expenses of counsel for any Indemnified Party subsequently incurred thereafter by the Indemnifying Party, in connection with such its defense of any third-party claim except that, if such hereunder. The Indemnified Party reasonably determines that may hire separate counsel designated and participate in such defense at its own expense. No settlement of a third-party claim or demand defended by the Indemnifying Party has a conflict shall be made without the written consent of interest due the Indemnified Party, such consent not to be unreasonably withheld. The Indemnifying Party shall not, except with written consent of the Indemnified Party, consent to the conflicting interests entry of a judgment or settlement which does not include as an unconditional term thereof, the Indemnifying Party and giving by the claimant or plaintiff to the Indemnified Party of an unconditional release from all liability in respect of such third-party claim or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partydemand.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (theMaven, Inc.)
Indemnification Procedures. With respect (a) In the event that any Claim for which an indemnifying party (an “Indemnifying Party”) may have liability to any claim made or threatened against a indemnified party entitled to indemnification under this Section 9 (an "“Indemnified Party"), ”) pursuant to Sections 7.2 or compulsory process 7.3 (an “Indemnification Claim”) is asserted against or request or other notice of sought to be collected from any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9by a third party (a “Third-Party Claim”), such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of promptly notify the Collateral Manager, the Collateral Manager shall cause such Indemnified Indemnifying Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") in writing of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim Third-Party Claim and the amount or the estimated amount of Damages sought thereunder (or an which estimate shall not be conclusive of the amountfinal amount of such Third-Party Claim) of the claim(a “Claim Notice”); provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve affect the Indemnifying rights of an Indemnified Party of its obligations under this Section 9 hereunder except to the extent that the Indemnifying Party is materially and irrevocably prejudiced or otherwise forfeits rights or defenses by reason such failure and unless the Indemnified Party fails to give notice in accordance with this Section 7.5 prior to the expiry of the applicable Survival Period. The Indemnifying Party shall have 30 days after receipt of the Claim Notice to notify the Indemnified Party that it desires to defend the Indemnified Party against such failure;Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within such 30-day period that it desires to defend the Indemnified Party against a Third-Party Claim, (i) the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate Legal Proceedings (provided that counsel shall be reasonably acceptable to the Indemnified Party), (ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available subject to the Indemnifying immediately succeeding sentence and Section 7.5(c)(ii), the Indemnified Party at such reasonable times as shall have the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, right to participate in the investigation, defense and settlement of such claim;
Claim at its own expense and shall not settle or compromise the Third-Party Claim, and (iviii) subject the Indemnifying Party shall have the power and authority to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofof the Third-Party Claim without the consent of the Indemnified Party if the judgment or settlement results only in the payment by the Indemnifying Party of the full amount of money damages without any admission of wrongdoing of any nature whatsoever to or by such Indemnified Party and includes an unconditional release of the Indemnified Party from any and all liability thereunder, and, in each case all other events, the Indemnifying Party shall not consent to the entry of judgment or enter into any settlement in respect of a Third-Party Claim without the prior written consent of the Indemnifying Party; and
Indemnified Party (v) upon reasonable prior noticenot to be unreasonably withheld, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, delayed or conditioned). If the Indemnified Party must consent shall participate in writing to the entry of any settlementsuch defense, compromiseit shall participate at its sole cost and expense, or entry of judgment in respect thereof unless (which consent shall not be unreasonably withheld); (2A) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an are both named parties to the Legal Proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate, due to actual or potential differing interests between them, or (B) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has defenses that are not available failed to the otherdiligently defend a Third-Party Claim it has assumed, such Indemnifying Party shall pay the reasonable fees and disbursements as provided in Section 7.5(c), in either of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, which events the Indemnifying Party shall bear the cost and expense of such participation to the extent it is required to indemnify the Indemnified Party therefor under this Article 7.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, or (ii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within 10 days after receiving written notice from the Indemnified Party stating that the Indemnifying Party has so failed, the Indemnified Party shall have the right, but not the obligation, to provide its own defense and to settle or compromise the Third-Party Claim with the consent of the Indemnifying Party (not to be entitled unreasonably withheld, delayed or conditioned).
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to appoint counsel ensure the proper and adequate defense of a Third-Party Claim, including by providing access to represent each other’s relevant business records and other documents, and employees (including, if necessary, availability for depositions and testifying), provided that no such cooperation shall be required to the extent such cooperation, on the reasonable advice of counsel, will reasonably be likely to result in the loss of the attorney-client privilege.
(e) In the event any Indemnified Party desires to assert a claim for indemnification under this Article 7 with respect to any matter not involving a Third-Party Claim, such Indemnified Party nor shall promptly notify the Indemnifying Party reimburse in writing of such Claim (and make any other notifications required under the Escrow Agreement); provided, however, that the failure to provide such a notice shall not affect the rights of an Indemnified Party for any costs hereunder except to the extent that the Indemnifying Party was materially and irrevocably prejudiced by such failure and unless the Indemnified Party fails to give notice in accordance with this Section 7.5 prior to the expiry of counsel to such Indemnified Partythe applicable Survival Period.
Appears in 2 contracts
Sources: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Indemnification Procedures. With In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to any claim made either Section 6(a) or threatened against a party entitled to indemnification under this Section 9 6(b), such person (an "the “Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which ”) shall promptly notify the person from whom such Indemnified Party is or indemnity may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 sought (the "“Indemnifying Party"”) of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount writing (or provided that failure to so notify an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve such Indemnifying Party from any liability under Section 6(a) or 6(b) to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement) and the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others the Indemnifying Party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its obligations under this Section 9 except own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed in writing to the extent retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or different legal defenses available to them. It is understood that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense shall not, in respect of the Indemnifying Party, provide the Indemnifying legal expenses of any Indemnified Party such information and cooperation in connection with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) any proceeding or related proceedings in the event suit is brought with respect same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such claimIndemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representative, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigationcase of parties indemnified pursuant to Section 6(a) above, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions by the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofCompany, in each the case without the prior written consent of the Indemnifying Party; and
(vparties indemnified pursuant to Section 6(b) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the above. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse the Indemnified Party for fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatas contemplated by the first and second sentences of this paragraph, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict agrees that it shall be liable for any settlement of interest due to the conflicting interests any proceeding effected without its written consent if (i) such settlement is entered into more than 90 days after receipt by such Indemnifying Party of the Indemnifying Party aforesaid request and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, (ii) such Indemnifying Party shall pay not have reimbursed the reasonable fees and disbursements Indemnified Party in accordance with such request prior to the date of one counsel (in addition to any local counsel) separate from such settlement. No Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in Party shall, without the same jurisdiction arising out prior written consent of the same general allegations Indemnified Party, effect any settlement of any pending or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts threatened proceeding in the light respect of the then-prevailing circumstances to defend such claim; and (4) if which any Indemnified Party waives its right to indemnification hereunderis or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, the Indemnifying Party shall not be entitled to appoint counsel to represent unless such settlement includes an unconditional release of such Indemnified Party nor shall from all liability on claims that are the Indemnifying Party reimburse subject matter of such Indemnified Party for proceeding and does not include any costs statement as to or any admission of counsel fault, culpability or a failure to such act by or on behalf of any Indemnified Party.
Appears in 2 contracts
Sources: Underwriting Agreement (MGM Resorts International), Underwriting Agreement (MGM Resorts International)
Indemnification Procedures. With respect to (a) If any third party asserts any claim made or threatened against a party entitled to this Agreement which would entitle the party to indemnification under this Section 9 ARTICLE XII (an "the “Indemnified Party"”), or compulsory process or request or other it shall give notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice claim to the party required from whom it intends to indemnify seek indemnification (the “Indemnifying Party”) and the Indemnifying Party shall have the right to assume the defense and, subject to Section 12.3(b), settlement of such claim at its expense by representatives of its own choosing acceptable to the Indemnified Party under this Section 9 (which acceptance shall not be unreasonably withheld). The failure of the "Indemnified Party to notify the Indemnifying Party") Party of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 any liability that the Indemnifying Party may have with respect to such claim, except to the extent that the Indemnifying Party defense is materially prejudiced or otherwise forfeits rights or defenses by reason such failure. The Indemnified Party shall have the right to participate in the defense of such failure;
claim at its expense (ii) which expense shall not be deemed to be a Loss), in which case the Indemnifying Party shall cooperate in providing information to and consulting with the Indemnified Party about the claim. The Indemnified Party shall have the right to employ separate counsel to represent the Indemnified Party if it is advised by counsel that an actual or likely conflict of interest makes it advisable for the Indemnified Party to be represented by separate counsel and reasonable expenses and fees of such separate counsel shall be paid by the Indemnifying Party. If the Indemnifying Party fails or does not assume the defense of any such claim within 15 days after written notice of such claim has been given by the Indemnified Party to the Indemnifying Party, the Indemnified Party may defend against or, subject to Section 12.3(b), settle such claim with counsel of its own choosing at the expense (to the extent reasonable under the circumstances) of the Indemnifying Party, provide .
(b) If the Indemnifying Party such information and cooperation does not assume the defense of a claim involving the asserted liability of the Indemnified Party under this ARTICLE XII, no settlement of, or admission of guilt with respect to such claim as shall be made by the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if withheld or delayed. If the Indemnifying Party assumes the defense of such a claim, the Indemnifying Party shall not (i) no settlement thereof may be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated effected by the Indemnifying Party has a conflict without the Indemnified Party’s consent unless (A) there is no finding or admission of interest due to the conflicting interests any violation of Law or any violation of the rights of any Person and no effect on any other claim that may be made against the Indemnified Party, (B) the sole relief provided is monetary damages that have been paid in full by the Indemnifying Party Party, and (C) the settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party or that either an of a release in form and substance reasonably satisfactory to the Indemnified Party, from all liability in respect of such claim, and (ii) the Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition have no liability with respect to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action compromise or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use thereof effected without its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyconsent.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Atlas Pipeline Partners Lp)
Indemnification Procedures. With respect (a) Subject to Section 11.2(b), any claim made or threatened against a party entitled to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon by an Indemnified Party, for Party on account of a Loss which such Indemnified does not result from a Third Party is or may Claim (a “Direct Claim”) shall be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify asserted by the Indemnified Party under this Section 9 giving the Indemnifying Party reasonably prompt written notice thereof (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatenedeach, which notice shall specify in reasonable detail the nature a “Claim Notice”). The failure of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to promptly give a Claim Notice of any Direct Claim shall not release, waive or otherwise affect the Indemnifying Party shall not relieve the Indemnifying Party of its Party’s obligations under this Section 9 with respect thereto, except to the extent that the Indemnifying Party is actually and materially prejudiced or otherwise forfeits rights or defenses by reason as a result of such failure;
. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (ii30) at days after its receipt of such notice to respond in writing to such Direct Claim. If the expense of Indemnifying Party does not so respond within such thirty (30)-day period, the Indemnifying Party shall be deemed to have agreed to such claim and the Indemnifying Party, provide ’s obligation to indemnify the Indemnifying Indemnified Party such information and cooperation for the full amount of all Losses related to or resulting therefrom. If any Proceeding is commenced with respect to a Direct Claim, the prevailing Party in such claim as Proceeding shall be entitled to recover from the Indemnifying non-prevailing party the reasonable legal fees (on a solicitor and its own client basis), court costs and other expenses incurred by the prevailing party in connection with such Proceeding in addition to any other relief to which such Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;be entitled.
(iiib) Subject to Section 11.2(b) and the Tax Conduct Agreement, in the event suit that any Proceeding shall be instituted or that any claim or demand shall be asserted by any Person who is brought not a Party or an Affiliate of any Party or a representative of any of the foregoing, against an Indemnified Party with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in is obligated to provide indemnification under this Article 11 (a “Third Party Claim”), subject to Section 11.1, the Indemnified Party shall reasonably promptly cause a Claim Notice regarding any Third Party Claim of which it has knowledge that is covered by this Article 11 to be forwarded to the Indemnifying Party. The failure of an Indemnified Party to reasonably promptly provide a Claim Notice of any Third Party Claim shall not release, waive or otherwise affect the Indemnifying Party’s obligations with respect thereto, except to the extent that the Indemnifying Party is actually and materially prejudiced as a result of such failure. The Indemnifying Party shall have fifteen (15) days after its sole discretion receipt of a Claim Notice to notify the Indemnified Party that the Indemnifying Party has elected to conduct and control the defense, negotiation or settlement of such Third Party Claim and any Proceeding resulting therefrom with counsel of its choice (reasonably acceptable to the Indemnified Party) and at its expensesole cost and expense (a “Third Party Defense”); provided, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to that the Indemnifying Party shall not have the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, right to assume the defense of a Third Party Claim to the extent that the principal relief sought by such claim, including, without limitation, Third Party Claim is an injunction or equitable relief against the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if Indemnified Party. If the Indemnifying Party assumes the defense and appeals of such claimThird Party Defense in accordance herewith, the Indemnified Party must consent in writing to may retain separate co-counsel (the entry of any settlement, compromise, or entry of judgment in respect thereof (costs for which consent shall the Indemnified Party will not be unreasonably withheld); entitled to indemnification, unless the named parties to such Proceeding (2including any impleaded parties) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of include the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would not be permitted under applicable standards of professional conduct or that either an such Indemnified Party shall have been advised by its outside counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to such Indemnifying Party, or if available to such Indemnifying Party, the assertion of which would be adverse to or in conflict with the interests of the Indemnifying Party, or if so requested to participate by Indemnifying Party, and then in each such case, the fees, costs and expenses of such counsel shall be indemnifiable amounts hereunder) and participate in the defense of the Third Party Claim but the Indemnifying Party shall control the investigation, defense and settlement thereof. If the Indemnifying Party does not assume the Third Party Defense within such fifteen (15) day period, or the Indemnifying Party has defenses is not entitled to assume the Third Party Defense in accordance herewith, the Indemnified Party will be entitled to conduct and control the Third Party Defense, and such fees and costs shall be indemnifiable Losses hereunder; provided, that are not available the Indemnifying Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim but the Indemnified Party shall control the investigation, defense and settlement, subject to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claimprovisions herein; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled cooperate in good faith in such defense. Notwithstanding anything in this Section 11.5(b) to appoint counsel to represent such the contrary, the Indemnified Party nor shall not, without the written consent of the Indemnifying Party reimburse (which shall not be unreasonably withheld, conditioned or delayed), (y) settle or compromise any Third Party Claim, or (z) permit a default or consent to entry of any judgment, in each case of clause (y) or (z), unless the claimant provides to the Indemnifying Party a release in respect of the Third Party Claim. The Indemnifying Party may settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment, in each case, provided, that such settlement, default or judgment is solely for money damages that the Indemnifying Party has agreed in writing to pay and the Indemnified Party and its Affiliates are fully released for any costs claims relating thereto.
(c) After any final decision, judgment or award been rendered by a Governmental Entity of counsel competent jurisdiction or Tax Authority, or a settlement shall have been entered into, or the Indemnified Party and the Indemnifying Party shall have entered into a mutually binding agreement with respect to a claim hereunder, or the Indemnifying Party fails to object to a Direct Claim in the time provided above, then the Indemnifying Party shall pay, or cause to be paid, to the Indemnified Party any sums due and owing pursuant to this Agreement with respect to such Indemnified Partymatter.
Appears in 2 contracts
Sources: Share Purchase Agreement (Plains Gp Holdings Lp), Share Purchase Agreement (Plains All American Pipeline Lp)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to indemnification Each Indemnitee (as defined under this Section 9 (an "Indemnified Party"10(a), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give prompt written notice to the party required Indemnifying Party of any claim with respect to indemnify the Indemnified Party under which it seeks indemnification or contribution pursuant to this Section 9 Agreement (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party the Indemnitee to provide promptly deliver such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 any liability, except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of in its ability to defend such failure;
claim) and (ii) permit such Indemnifying Party, as applicable, to assume the defense of such claim with counsel selected by such Indemnifying Party and reasonably satisfactory to the Indemnitee; provided, however, that any Indemnitee entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless (A) the Indemnifying Party has agreed in writing to pay such fees and expenses, (B) the Indemnifying Party shall have failed to assume the defense of such claim within five (5) days of delivery of the written notice of the Indemnitee with respect to such claim or failed to employ counsel selected by such Indemnifying Party and reasonably satisfactory to the Indemnitee, or (C) in the reasonable judgment of the Indemnitee, based upon advice of its counsel, a conflict of interest may exist between the Indemnitee and the Indemnifying Party with respect to such claims (in which case, if the Indemnitee notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, provide the Indemnifying Party shall not have the right to assume the defense of such information claim on behalf of the Indemnitee). If the Indemnifying Party assumes the defense of the claim, it shall not be subject to any liability for any settlement or compromise made by the Indemnitee without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). In connection with any settlement negotiated by an Indemnifying Party, no Indemnifying Party shall, and cooperation with no Indemnitee shall be required by an Indemnifying Party to, (I) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect to such claim as the Indemnifying Party may reasonably requireor litigation, including, without limitation, making appropriate personnel available (II) enter into any settlement that attributes by its terms any liability to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
Indemnitee, or (iiiIII) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofthat does not include as a term thereof a full dismissal of the litigation or proceeding with prejudice. In addition, in each case without the prior written consent of the Indemnitee, no Indemnifying Party shall consent to entry of any judgment or enter into any settlement which provides for any action on the part of the Indemnitee other than the payment of money damages which are to be paid in full by the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the . If an Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, fails or elects not to assume the defense of such claim, including, without limitation, the right a claim pursuant to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, clause (1B) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromiseabove, or entry of judgment in respect thereof (which consent shall is not be unreasonably withheld); (2) if the Indemnifying Party assumes entitled to assume or continue the defense of such claim pursuant to clause (C) above, the Indemnitee shall have the right without prejudice to its right of indemnification hereunder to, in its discretion exercised in good faith and upon advice of counsel, to contest, defend and litigate such claim and may settle such claim, either before or after the initiation of litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable, provided that, at least five (5) days prior to any settlement, written notice of its intention to settle is given to the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated Party. If requested by the Indemnifying Party has a conflict of interest due Party, the Indemnitee agrees (at no expense to the conflicting interests of Indemnitee) to reasonably cooperate with the Indemnifying Party and the Indemnified Party or its counsel in contesting any claim that either an Indemnified Party or the Indemnifying Party has defenses that are not available elects to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partycontest.
Appears in 2 contracts
Sources: Securities Purchase Agreement (South Texas Oil Co), Securities Purchase Agreement (South Texas Oil Co)
Indemnification Procedures. With respect to All claims for indemnification by an Indemnified Party under Section 7.2 shall be asserted and resolved as follows:
(a) In the event any claim made or threatened against a party entitled to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice demand in respect of any loss, claim, damage or liability served upon which an Indemnified Party, for which Party might seek indemnity under Section 7.2 is asserted against or sought to be collected from such Indemnified Party is by a Person other than a Seller Indemnified Party or may be entitled to indemnification under this Section 9a Purchaser Indemnified Party (a “Third Party Claim”), such the Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice promptly deliver a Claim Notice to the party required to indemnify Indemnifying Party; provided that no delay on the part of the Indemnified Party under this Section 9 (the "Indemnifying Party") of in giving any such claim within 10 days after such claim is made or threatened, which notice Claim Notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except any indemnification obligation hereunder unless (and then solely to the extent that that) the Indemnifying Party is materially prejudiced by such delay. The Indemnifying Party shall notify the Indemnified Party in writing as soon as practicable within the Dispute Period whether or otherwise forfeits rights or defenses by reason of such failure;
(ii) not the Indemnifying Party desires, at the expense of the Indemnifying Party’s sole cost and expense and by counsel of its own choosing, provide which shall be reasonably satisfactory to the Indemnified Party, to defend against such Third Party Claim; provided further that if, under applicable standards of professional conduct a conflict on any significant issue between the Indemnifying Party and the Indemnified Party exists in respect of such information Third Party Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and cooperation expenses of one additional counsel to be retained in order to resolve such conflict, promptly upon presentation by the Indemnified Party of invoices or other documentation evidencing such amounts to be reimbursed.
(i) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that it desires to defend against such Third Party Claim, (i) the Indemnifying Party shall use its Commercially Reasonable Efforts to defend and protect the interests of the Indemnified Party with respect to such claim as the Indemnifying Third Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided thatClaim, (1ii) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent Party, prior to or during the period in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claimmatter, may take such reasonable actions as the Indemnified Party deems necessary to preserve any and all rights with respect to such matter, without such actions being construed as a waiver of the Indemnified Party’s rights to defense and indemnification pursuant to this Agreement, (iii) the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, consent to any settlement that (A) does not contain an unconditional release of the Indemnified Party from the subject matter of the settlement, (B) imposes any liabilities or obligations on the Indemnified Party and (C) with respect to any non-monetary provision of such settlement, could, in the Indemnified Party’s reasonable judgment, have a material adverse effect on the business, assets, properties, condition (financial or otherwise), results of operations or prospects of the Indemnified Party (for purposes of this subsection (iii) an effect shall be deemed “material” if it involves $100,000 or more), (iv) the Indemnified Party shall cooperate to the extent reasonable (during regular business hours) with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (v) the Indemnifying Party shall be deemed to have agreed that it will indemnify the Indemnified Party pursuant to, and subject to the conditions and limitations set forth in, the provisions of this Article VII.
(ii) If the Indemnifying Party does not notify the Indemnified Party within the Dispute Period that it desires to defend against such Third Party Claim, then the Indemnifying Party shall have the right to participate in any such defense at its sole cost and expense, but, in such case, the Indemnified Party shall control the investigation and defense and may settle or take any other actions the Indemnified Party deems reasonably advisable without in any way waiving or otherwise affecting the Indemnified Party’s rights to indemnification pursuant to this Agreement.
(iii) The Indemnified Party and the Indemnifying Party agree to make available to each other, their counsel and other representatives, all information and documents available to them which relate to such Third Party Claim. The Indemnified Party and the Indemnifying Party, the MGM Acquired Entities and their respective employees also agree to render to each other such assistance and cooperation as may reasonably be required to ensure the proper and adequate defense of such Third Party Claim.
(iv) Notwithstanding the foregoing, in any event, if the Indemnified Party desires to participate in any defense of a Third Party Claim it may do so at its sole cost and expense, and the Indemnified Party shall have the right to control, pay or settle any Third Party Claim which the Indemnifying Party shall have undertaken to defend so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party.
(b) In the event that an Indemnified Party should have a claim against the Indemnifying Party hereunder which it determines to assert, but which does not involve a Third Party Claim, the Indemnified Party shall send an Indemnity Notice with respect to such claim to the Indemnifying Party. The Indemnifying Party shall have the Dispute Period during which to notify the Indemnified Party in writing of any good faith objections it has to the Indemnified Party’s Indemnity Notice, setting forth in reasonable detail each of the Indemnifying Party’s objections thereto. If the Indemnifying Party does not deliver such written notice of objection within the Dispute Period, the Indemnifying Party shall not be liable deemed to have accepted responsibility for any fees the prompt payment of the Indemnified Party’s claims for indemnification set forth in the Indemnity Notice, and expenses shall have no further right to contest the validity of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by indemnification claims. If the Indemnifying Party has a conflict does deliver such written notice of interest due to objection within the conflicting interests of Dispute Period, the Indemnifying Party and the Indemnified Party or that either an shall attempt in good faith to resolve any such dispute within the Resolution Period and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 7.3(c).
(c) Any dispute submitted to arbitration pursuant to this Section 7.3(c) shall be finally and conclusively determined by the decision of a board of arbitration consisting of three members (hereinafter sometimes called the “Board of Arbitration”) selected as hereinafter provided. Each of the Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not select one member and the third member shall be entitled selected by mutual agreement of the other members, or if the other members fail to appoint counsel reach agreement on a third member within twenty days after the selection of the second arbitrator, such third member shall thereafter be selected by the American Arbitration Association upon application made to represent such it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party nor and the Indemnifying Party. The Board of Arbitration shall meet in Las Vegas, Nevada or such other place as a majority of the members of the Board of Arbitration determines more appropriate, and shall reach and render a decision in writing (concurred in by a majority of the members of the Board of Arbitration) with respect to the amount, if any, which the Indemnifying Party reimburse such is required to pay to the Indemnified Party in respect of the Indemnified Party’s claims for indemnification set forth in the Indemnity Notice. In connection with rendering its decision, the Board of Arbitration shall adopt and follow such rules and procedures as a majority of the members of the Board of Arbitration deems necessary or appropriate. To the extent practical, decisions of the Board of Arbitration shall be rendered no more than thirty days following commencement of proceedings with respect thereto. The Board of Arbitration shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Board of Arbitration (either prior to or after the expiration of such thirty day period) shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced to the fullest extent permitted by Law and entered in any costs court of counsel competent jurisdiction. Each party to any arbitration shall bear its own expenses in relation thereto, including but not limited to such party’s attorneys’ fees, if any, and the expenses and fees of the Board of Arbitration shall be divided between the Indemnifying Party and the Indemnified PartyParty in the same proportion as the portion of the related claim determined by the Board of Arbitration to be payable to the Indemnified Party bears to the portion of such claim determined not to be so payable.
Appears in 2 contracts
Sources: Stock Purchase Agreement (MGM Mirage), Stock Purchase Agreement (GNLV Corp)
Indemnification Procedures. With (a) Except as otherwise provided in Article X hereof with respect to Taxes, with respect to third-party claims, all claims for indemnification by any claim made or threatened against a party entitled to indemnification under this pursuant to Section 9 10.2 or 10.3 hereof or Article XI hereof (an "Indemnified Party"), ) shall be asserted and resolved as set forth in this Section 10.4. In the event that any written claim or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, demand for which Purchaser or Seller would be liable (as the case may be, an "Indemnifying Party") to any Indemnified Party is asserted against or sought to be collected from such Indemnified Party is or may be entitled to indemnification under this Section 9by a third party, such Indemnified Party shall promptly, but in no event more than 15 days following its receipt of such claim or demand, notify the Indemnifying Party of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the "Claim Notice"). The Indemnifying Party shall have 20 days from the personal delivery or receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (a) whether or not the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents such claim or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
demand and (ib) give written notice whether or not it desires to the party required to indemnify defend the Indemnified Party under this Section 9 (against such claim or demand. All costs and expenses incurred by the "Indemnifying Party in defending such claim or demand shall be a liability of, and shall be paid by, the Indemnifying Party") of . Except as hereinafter provided, in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend such party against such claim within 10 days after such claim is made or threateneddemand, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings and shall have the sole power to direct and control such defense. If any Indemnified Party desires to participate in any such defense, it may do so at its sole cost and expense. The Indemnified Party shall not relieve settle a claim or demand without the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense consent of the Indemnifying Party, provide the which shall not be unreasonably withheld. The Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably requireshall not, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Indemnified Party; and
(v) upon reasonable prior notice, afford settle, compromise or offer to settle or compromise any such claim or demand. If the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, elects not to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, defend the Indemnified Party must consent in writing to against such claim or demand, whether by not giving such party timely notice as provided above or otherwise, then the entry amount of any settlementsuch claim or demand or, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the same be contested by such party, then that portion thereof as to which such defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.is unsuccessful
Appears in 2 contracts
Sources: Stock Purchase Agreement (Westpoint Stevens Inc), Stock Purchase Agreement (Dyersburg Corp)
Indemnification Procedures. With respect (a) Each indemnified Party shall notify the indemnifying Party in writing (and in reasonable detail) of the Claim within [**] business days after receipt by such indemnified Party of notice of the Epizyme Claim or ▇▇▇▇▇▇ Claim, as the case may be, or otherwise becoming aware of the existence or threatened existence thereof (such Epizyme Claim or ▇▇▇▇▇▇ Claim being referred to as a “Claim”). Failure to give such notice shall not constitute a defense, in whole or in part, to any claim made or threatened against a party entitled to indemnification under this Section 9 (by an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 hereunder except to the extent that the Indemnifying rights of the indemnifying Party is are materially prejudiced by such failure to give notice. An indemnifying Party shall have no obligation or otherwise forfeits rights liability under this Article 10 as to any Claim for which settlement or defenses by reason compromise of such failure;
(ii) at the expense Claim, or an offer of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement or compromise of such claim;
(iv) subject to clause (v) belowClaim, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified is made by an indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld).
(b) The indemnifying Party shall assume exclusive control of the defense and settlement (including all decisions relating to litigation, defense and appeal) of any such Claim; provided, however, that, without the indemnified Party’s prior written consent, which shall not be unreasonably withheld, the indemnifying Party may not settle such Claim in any manner that would: (i) require payment (unless fully indemnified hereunder) or admission of liability by the indemnified Party; (2ii) materially adversely affect the rights granted to the indemnified Party under this Agreement; (iii) materially conflict with the terms of this Agreement; or (iv) adversely affect other products or services of the indemnified Party or its Affiliates.
(c) The indemnified Party shall reasonably cooperate with the indemnifying Party, at the Indemnifying Party’s expense, in its defense of the Claim (including making documents and records available for review and copying and making persons within its control available for pertinent testimony in accordance with the confidentiality provisions of Article 6, and neither Party shall be required to divulge privileged material to the other). The indemnified Party may participate in, but not control, the defense of such Claim using attorneys of its choice and at its sole cost and expense, with such cost and expense not being covered by the indemnifying Party. If an indemnifying Party does not assume the defense of the Claim asserted against the indemnified Party, or if the Indemnifying indemnifying Party assumes the defense of the Claim in accordance with Section 10.3 yet fails to defend or take other reasonable, timely action, in response to such claimClaim asserted against the indemnified Party, the Indemnifying indemnified Party shall have the right to defend or take other reasonable action to defend its interests in such proceedings, and shall have the right to litigate, settle or otherwise dispose of any such Claim, without in any way limiting the indemnified Party’s right to be fully indemnified under this Section 10.1 for all Abbott Losses or Epizyme Losses, as applicable; provided, however, that, without the indemnifying Party’s prior written consent, which shall not be liable for unreasonably withheld, the indemnified Party may not settle such Claim in any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines manner that counsel designated would: (i) require payment by the Indemnifying Party has a conflict of interest due indemnifying Party; (ii) materially adversely affect the rights granted to the conflicting interests indemnifying Party under this Agreement; (iii) materially conflict with the terms of this Agreement; or (iv) adversely affect other products or services of the Indemnifying Party and the Indemnified indemnifying Party or that either an Indemnified its Affiliates.
(d) Neither Party or will assert any Claim for indemnification under this Agreement more than two (2) years after the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified PartyClaim arises.
Appears in 2 contracts
Sources: Development and Commercialization Agreement (Epizyme, Inc.), Development and Commercialization Agreement (Epizyme, Inc.)
Indemnification Procedures. With respect to (a) If any third party asserts any claim made or threatened against a party entitled to this Agreement which, if successful, would entitle the party to indemnification under this Section 9 Article X (an "the “Indemnified Party"”), or compulsory process or request or other it shall give notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice claim to the party required from whom it intends to indemnify seek indemnification (the “Indemnifying Party”) and the Indemnifying Party shall have the right to assume the defense and, subject to Section 10.2(b), settlement of such claim at its expense by representatives of its own choosing acceptable to the Indemnified Party under this Section 9 (which acceptance shall not be unreasonably withheld). The failure of the "Indemnified Party to notify the Indemnifying Party") Party of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 any liability that the Indemnifying Party may have with respect to such claim, except to the extent that the Indemnifying Party defense is materially prejudiced or otherwise forfeits rights or defenses by reason such failure. The Indemnified Party shall have the right to participate in the defense of such failure;
claim at its expense (ii) which expense shall not be deemed to be a Loss), in which case the Indemnifying Party shall cooperate in providing information to and consulting with the Indemnified Party about the claim. If the Indemnifying Party fails or does not assume the defense of any such claim within 15 days after written notice of such claim has been given by the Indemnified Party to the Indemnifying Party, the Indemnified Party may defend against or, subject to Section 10.2(b), settle such claim with counsel of its own choosing at the expense (to the extent reasonable under the circumstances) of the Indemnifying Party, provide .
(b) If the Indemnifying Party such information and cooperation with respect to such does not assume the defense of a claim as involving the Indemnifying asserted liability of the Indemnified Party may reasonably requireunder this Article X, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and no settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions shall be made by the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if withheld or delayed. If the Indemnifying Party assumes the defense of such a claim, the Indemnifying Party shall not (i) no settlement thereof may be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated effected by the Indemnifying Party has a conflict without the Indemnified Party’s consent unless (A) there is no finding or admission of interest due to the conflicting interests any violation of Law or any violation of the rights of any Person and no effect on any other claim that may be made against the Indemnified Party, (B) the sole relief provided is monetary damages that have been paid in full by the Indemnifying Party Party, and (C) the settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party or that either an of a release in form and substance reasonably satisfactory to the Indemnified Party, from all liability in respect of such claim, and (ii) the Indemnified Party shall have no liability with respect to any compromise or the Indemnifying Party has defenses that are not available settlement thereof effected without its consent. Notwithstanding anything in this Agreement to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereundercontrary, the Indemnifying Party Litigation shall not be entitled to appoint counsel to represent such Indemnified Party nor shall settled or compromised on any terms and conditions without the Indemnifying Party reimburse such Indemnified Party for any costs prior written consent of counsel to such Indemnified PartySeller’s Representative.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Trans Energy Inc), Purchase and Sale Agreement (Trans Energy Inc)
Indemnification Procedures. With respect to any claim made or threatened against a Each party entitled to indemnification under this Section 9 8.07 (an the "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim within 10 days after such claim is made or threatenedlitigation, which notice shall specify in reasonable detail be approved by the nature of the claim and the amount Indemnified Party (or an estimate of the amount) of the claim; provided, however, that the whose approval shall not unreasonably be withheld). The failure of any Indemnified Party to provide such give notice to the Indemnifying Party as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 9 except Agreement only to the extent that such failure to give notice shall materially prejudice the Indemnifying Party is materially prejudiced in the defense of any such claim or otherwise forfeits rights any such litigation. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that attributes any liability to the Indemnified Party, unless the settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. If any such Indemnified Party shall have been advised by counsel chosen by it that there may be one or more legal defenses by reason of available to such failure;
(ii) at the expense of Indemnified Party that are different from or additional to those available to the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as shall not have the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, right to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals action on behalf of such claim; provided that, (1) if Indemnified Party and will reimburse such Indemnified Party and any person controlling such Indemnified Party for the Indemnifying Party assumes the defense reasonable fees and appeals expenses of such claim, any counsel retained by the Indemnified Party must consent in writing to the entry of any settlementParty, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, it being understood that the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatnot, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best be liable for the reasonable efforts in the light fees and expenses of the then-prevailing circumstances to defend such claim; and (4) if any more than one separate firm of attorneys for each Indemnified Party waives its right or controlling person (and all other Indemnified Parties and controlling persons which may be represented without conflict by one counsel), which firm shall be designated in writing by the Indemnified Party (or Indemnified Parties, if more than one Indemnified Party is to indemnification hereunder, be represented by such counsel) to the Indemnifying Party. The Indemnifying Party shall not be entitled subject to appoint counsel any liability for any settlement made without its consent, which shall not be unreasonably withheld. If the indemnification provided for in this Section 8.07 from the Indemnifying Party is unavailable to represent an Indemnified Party hereunder in respect of any losses, claims, damages, labilities or expenses referred to therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party nor shall as a result of such losses, claims, damages, labilities or expenses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party reimburse and Indemnified Parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such Indemnifying Party for or Indemnified Parties, and the parties, relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses claims, damages, liabilities and expenses referred to above shall be deemed to include any costs legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8.07 were determined by pro rata allocation or by any other method of counsel allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No person guilty of fraudulent misrepresentation (within the meaning of section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such Indemnified Partyfraudulent misrepresentation).
Appears in 2 contracts
Sources: Limited Partnership Agreement (Golf Trust of America Inc), Limited Partnership Agreement (Golf Trust of America Inc)
Indemnification Procedures. With In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to any claim made Section 8(a), 8(b) or threatened against a party entitled to indemnification under this Section 9 8(c), such person (an "the “Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which ”) shall promptly notify the person from whom such Indemnified Party is or indemnity may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 sought (the "“Indemnifying Party"”) of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount writing (or provided that failure to so notify an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve such Indemnifying Party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement) and the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others the Indemnifying Party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its obligations under this Section 9 except own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed in writing to the extent retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense shall not, in respect of the Indemnifying Party, provide the Indemnifying legal expenses of any Indemnified Party such information and cooperation in connection with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) any proceeding or related proceedings in the event suit is brought with respect same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such claimIndemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Underwriter, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigationcase of parties indemnified pursuant to Section 8(a) above, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions by the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofCompany, in each the case without the prior written consent of the Indemnifying Party; and
(vparties indemnified pursuant to Section 8(b) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the above. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse the Indemnified Party for fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatas contemplated by the first and second sentences of this paragraph, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict agrees that it shall be liable for any settlement of interest due to the conflicting interests any proceeding effected without its written consent if (i) such settlement is entered into more than 90 days after receipt by such Indemnifying Party of the Indemnifying Party aforesaid request and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, (ii) such Indemnifying Party shall pay not have reimbursed the reasonable fees and disbursements Indemnified Party in accordance with such request prior to the date of one counsel (in addition to any local counsel) separate from such settlement. No Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in Party shall, without the same jurisdiction arising out prior written consent of the same general allegations Indemnified Party, effect any settlement of any pending or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts threatened proceeding in the light respect of the then-prevailing circumstances to defend such claim; and (4) if which any Indemnified Party waives its right to indemnification hereunderis or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, the Indemnifying Party shall not be entitled to appoint counsel to represent unless such settlement includes an unconditional release of such Indemnified Party nor shall from all liability on claims that are the Indemnifying Party reimburse subject matter of such Indemnified Party for any costs of counsel to such Indemnified Partyproceeding.
Appears in 2 contracts
Sources: Underwriting Agreement (MGM Resorts International), Underwriting Agreement (Tracinda Corp)
Indemnification Procedures. With (a) If any claim or demand is made against an Indemnified Party by a Person not a party hereto (or an Affiliate thereof) with respect to any claim made or threatened against matter by any Person who is not a party entitled to this Agreement (or an Affiliate thereof) which may give rise to a claim for indemnification against an Indemnifying Party under this Section 9 Agreement (an "a “Third Party Claim”), then the Indemnified Party will promptly notify the Indemnifying Party in writing and in reasonable detail of the Third Party Claim, including the factual basis for the Third Party Claim and, to the extent known, the amount of the Third Party Claim; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will affect the Indemnifying Party’s obligations under this Article X, except to the extent the Indemnifying Party is actually prejudiced as a result thereof (except that the Indemnifying Party will not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party will deliver to the Indemnifying Party, promptly after the Indemnified Party"’s receipt thereof, copies of all non-ministerial notices and documents (including court papers) received or transmitted by the Indemnified Party relating to the Third Party Claim.
(b) The Indemnifying Party will have the right to participate in or to assume the defense of any Third Party Claim (in either case at the expense of the Indemnifying Party) with counsel of its choice. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume 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). Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, or compulsory process or request the Indemnifying Party will not be liable to the Indemnified Party for any legal or other notice expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party is conducting the defense of any loss, claim, damage or liability served upon an the Third Party Claim the Indemnified Party, for which such Indemnified Party is or at its sole cost and expense, may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees retain separate counsel and participate in the defense of the Collateral ManagerThird Party Claim, it being understood that the Collateral Manager Indemnifying Party will control such defense and any such counsel shall cause such Indemnified Party to):cooperate with the legal counsel of the Indemnifying Party.
(ic) give No Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without each Indemnified Party’s prior written notice to consent (which consent will not be unreasonably withheld, conditioned or delayed); provided that if the party required to indemnify Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party under this Section 9 (the "Indemnifying Party") will agree to any settlement, compromise or discharge of such claim within 10 days after Third Party Claim which the Indemnifying Party may recommend and which by its terms unconditionally releases the Indemnified Party and each member of such claim is made or threatened, which notice shall specify Indemnified Party’s Group completely from all liability in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claimconnection with such Third Party Claim; provided, however, that the failure Indemnified Party may refuse to agree to any such settlement, compromise or discharge that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or any member of such Indemnified Party’s Group. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party will not and will cause its Affiliates not to, admit any liability, consent to the entry of any judgment or agree to any settlement, compromise or discharge with respect to any Third Party Claim without the prior written consent of the Indemnifying Party.
(d) If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will keep the Indemnified Party reasonably informed of all material developments relating to or in connection with such Third Party Claim. If the Indemnifying Party chooses to defend a Third Party Claim, the Indemnified Party will cooperate in the defense thereof, which cooperation will include the provision to the Indemnifying Party of records and information which 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.
(e) Any claim on account of Damages for which indemnification is provided under this Agreement that does not involve a Third Party Claim will be asserted by reasonably prompt written notice given by the Indemnified Party to the Indemnifying Party from whom such indemnification is sought. The notice shall set forth the amount, if known, or, if not known, an estimate of the foreseeable maximum amount, of claimed Damages and a description of the basis for such claim. The delay by any Indemnified Party to provide such notice to so notify the Indemnifying Party shall will not relieve affect the Indemnifying Party of its Party’s obligations under this Section 9 Article X, except to the extent that the Indemnifying Party is materially actually prejudiced or otherwise forfeits rights or defenses by reason of such failure;as a result thereof.
(iif) at In connection with any matter for which a claim or demand is made against an Indemnified Party under this Agreement, the expense of the Indemnifying Party, Indemnified Party shall use commercially reasonable efforts to provide the Indemnifying Party with reasonable and necessary access to all documents, data, products, product exemplars and knowledgeable personnel of the Indemnified Party and its Affiliates relevant to any such matter, in each case at the Indemnified Party’s cost and expense. Without limiting the generality of the foregoing, the Indemnified Party shall, at its own cost and expense, use commercially reasonable efforts to, and shall use commercially reasonable efforts to cause its Affiliates to, provide employees to act as witnesses, prepare and execute statements, authorizations, orders, reports and other documents and information and cooperation with respect to provide such claim as other assistance, in each case that is reasonably requested by the Indemnifying Party may reasonably requirein connection with any matter for which a claim or demand is made against an Indemnified Party under this Agreement, includingincluding in anticipation of, without limitationor preparation for, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) existing or future litigation or other matters in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in or any of its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;Affiliates is involved.
(ivg) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions In the failure to make event of which would expose such Indemnified payment in full by an Indemnifying Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such any claim except that, if such (an “Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the otherClaim”), such Indemnifying Party shall pay will be subrogated to and will stand in the reasonable fees and disbursements place of one counsel (in addition such Indemnified Party as to any local counsel) separate from events or circumstances in respect of which such Indemnifying Party's own counsel for all Indemnified Parties in connection Party may have any right or claim relating to such Indemnified Claim against any claimant or plaintiff asserting such Indemnified Claim or against any other Person. Such Indemnified Party will cooperate with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best in a reasonable efforts manner in the light of the then-prevailing circumstances to defend such prosecuting any subrogated right or claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent . Each such Indemnified Party nor shall the and Indemnifying Party reimburse such Indemnified Party for any costs of counsel will duly execute upon request all instruments reasonably necessary to such Indemnified Partyevidence and perfect the above described subrogation rights.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Teco Energy Inc), Equity Purchase Agreement (Teco Energy Inc)
Indemnification Procedures. With respect (a) The indemnification procedures set forth in Section 6.07(b) herein are applicable to any indemnity granted pursuant to the Ancillary Agreements (other than the Tax Matters Agreement).
(b) If a claim or demand is made or threatened against an Indemnified Party by any Person who is not a party entitled to indemnification under this Section 9 Agreement or the Ancillary Agreements (an a "Indemnified PartyThird Party Claim"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for ) as to which such Indemnified Party is or may be entitled to indemnification under pursuant to this Section 9Agreement or the Ancillary Agreements, such Indemnified Party shall (or with respect to Indemnified Parties that are directorsgive the Indemnifying Party notice of such Third Party Claim, officersas promptly as practicable, stockholders, members, partners, agents or employees but in any event no later than 15 days of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify receipt by the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claimnotice; provided, however, that the failure of any Indemnified Party to provide such notice to shall not release the Indemnifying Party from any of its obligations under the Ancillary Agreements except to the extent the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party of its obligations from any other obligation or liability that it may have to any Indemnified Party otherwise than under this Section 9 except to the extent that Ancillary Agreements. If the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason acknowledges in writing its obligations to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then such Indemnifying Party shall be entitled to assume and control the defense of such failure;
Third Party Claim at its expense and through counsel of its choice, subject to the approval of the Indemnified Party (ii) which approval shall not be unreasonably withheld or delayed), if it gives notice of its intention to do so to the Indemnified Party within 15 business days of the receipt of such notice from the Indemnified Party; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel, in each jurisdiction for which the Indemnified Party determines counsel is required to participate in such defense, at the expense of the Indemnifying Party, provide . In the event the Indemnifying Party exercises the right to undertake any such information and cooperation defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party at is, directly or indirectly, conducting the defense against any such reasonable times as Third Party Claim, the Indemnifying Party may request;
(iii) shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party all such witnesses, records, materials and information in the event suit Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as is brought with respect reasonably required by the Indemnified Party, subject to reimbursement of reasonable out-of-pocket expenses. No such claim, upon reasonable prior notice, afford to Third Party Claim may be settled by the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2withheld or delayed) if the Indemnifying Party assumes the defense unless such settlement is solely for money and includes an unconditional release of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any each Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party from any and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction Losses arising out of such action, claim, suit or proceeding and would not otherwise adversely affect the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in Indemnified Party. Notwithstanding the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderforegoing, the Indemnifying Party shall not be entitled to appoint assume the defense of any Third Party Claim and shall be liable for the fees and expenses of counsel to represent such incurred by the Indemnified Party nor shall in defending such Third Party Claim if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party reimburse such Indemnified Party for any costs shall be entitled to assume the defense of counsel the portion relating to such Indemnified Partymoney damages.
Appears in 2 contracts
Sources: Master Separation and Distribution Agreement (Atlas America Inc), Master Separation and Distribution Agreement (Atlas America Inc)
Indemnification Procedures. With respect to any claim made or threatened against a (a) A party entitled to indemnification under pursuant to this Section 9 Agreement (an "Indemnified Party")) shall, or compulsory process or request or other notice of with respect to any loss, claim, damage or liability served upon an Indemnified Party, for which claim made against such Indemnified Party for which indemnification is or may be entitled to indemnification under this Section 9available, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of notify the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the other party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") in writing of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and as soon as practicable but not more than ten days after the amount (or an estimate Indemnified Party receives notice of the amount) assertion of the claim; provided, however, that the . (The failure of any by an Indemnified Party to provide such give notice to the Indemnifying Party as provided above, shall not relieve the Indemnifying Party of its obligations under this Section 9 11.3, except to the extent that the failure ------------ results in the failure of actual notice and the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason damaged as a result of the failure to give notice.) Upon receipt of notice of the assertion of a claim, the Indemnifying Party may, at its option, assume the defense of the claim, and if so, the Indemnifying Party shall employ counsel reasonably acceptable to the Indemnified Party. If the Indemnifying Party assumes the defense, the Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) any such action, but the fees and expenses of such failure;
counsel shall be at the expense of the Indemnified Party unless (iia) the employment of counsel by the Indemnified Party has been authorized by the Indemnifying Party, or (b) the Indemnified Party has been advised by its counsel in writing that there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of the action (in which case the Indemnifying Party shall not have the right to direct the defense of the action on behalf of the Indemnified Party), in each of which cases the reasonable fees and expenses of such counsel shall be at the expense of the Indemnifying Party, provide . If the Indemnifying Party does not assume the defense, the Indemnified Party shall have the right to employ counsel and to control any such information action, and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion fees and at its expense, to participate in the investigation, defense and settlement expenses of such claim;
(iv) subject to clause (v) below, neither incur any material counsel shall be at the expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the . An Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense shall not be liable for any settlement of such claim, including, an action effected without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must its written consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the , nor shall an Indemnifying Party assumes settle any such action without the defense written consent of such claim, the Indemnifying Indemnified Party (which consent shall not be liable for unreasonably withheld). No Indemnifying Party will consent to the entry of any fees and expenses of counsel for judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party incurred thereafter in connection a release from all liability with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due respect to the conflicting interests claim. Each of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions cooperate in the same jurisdiction arising out defense of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromiseclaim for which indemnification is available and shall furnish such records, information, testimony and attend such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; conferences, discovery proceedings, hearings, trials and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not appeals as may reasonably be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyrequested.
Appears in 2 contracts
Sources: Services Agreement (Kraft Foods Inc), Services Agreement (Kraft Foods Inc)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to indemnification under this Section 9 (an "a) Each Indemnified Party"), or compulsory process or request or other Party shall provide the Indemnifying Party with timely notice of any loss, claim, damage claim or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled subject to indemnification under this pursuant to Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim5.1; provided, however, that the any failure of by any Indemnified Party to provide such notice to so notify the Indemnifying Party shall not will relieve the Indemnifying Party of its obligations under this Section 9 5.1 only if and to the extent that the Indemnifying Party will have been actually prejudiced as a result of such failure.
(b) An Indemnified Party shall (i) give the Indemnifying Party prompt notice of an indemnifiable claim so as to afford the Indemnifying Party the opportunity to defend or negotiate a settlement of such indemnifiable claim hereunder at the Indemnifying Party’s expense; provided that the Indemnifying Party will not settle any such claim without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed, and (ii) reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim.
(c) If any Indemnified Party desires to assert any claim for indemnification provided for under Section 5.1 other than a claim in respect of, arising out of or involving a third-party claim, such Indemnified Party shall notify (such notice, a “Direct Claim Notice”) the Indemnifying Party in writing, and in reasonable detail (taking into account the information then available to such Indemnified Party), of such claim promptly after becoming aware of the existence of such claim, except that the failure of an Indemnified Party to notify the Indemnifying Party will relieve the Indemnifying Party from its obligation to indemnify only to the extent that the Indemnifying Party is actually and materially prejudiced or otherwise forfeits rights or defenses by reason as a result of such failure;.
(iid) at the expense Each of the Indemnifying Partyparties shall use its commercially reasonable efforts to mitigate its respective losses hereunder upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any losses hereunder.
(e) Purchasers acknowledge that the Services to be provided to it hereunder are subject to, provide and that its remedies under this Agreement are limited by, the Indemnifying Party such information applicable provisions of Article VI, including the limitations on representations and cooperation warranties with respect to such claim as the Indemnifying Party may reasonably requireServices.
(f) This Article V will be the exclusive remedy of Purchasers and the Company and their respective Affiliates (and their respective successors, includingofficers, without limitationdirectors, making appropriate personnel available shareholders, employees, agents, representatives and members) for any and all losses, Liabilities, claims, fines, deficiencies, damages, obligations or payments arising out of or relating to any misrepresentation or breach of the representations, warranties, covenants or agreements of Seller or its Affiliates contained herein or otherwise relating to the Indemnifying Party at such reasonable times as subject matter of this Agreement (except for actions for specific performance, injunctive relief or other equitable relief pursuant to Section 9.10). In furtherance of the Indemnifying Party may request;
foregoing, Purchasers and the Company and their respective Affiliates (iiiand their respective successors, officers, directors, shareholders, employees, agents, representatives and members) in the event suit is brought with respect to such claimeach hereby waives, upon reasonable prior notice, afford to the Indemnifying Party the rightfullest extent permitted under applicable Law, which the Indemnifying Party any and all rights, claims and causes of action it may exercise in its sole discretion and at its expensehave against Seller under this Agreement, to participate in the investigationarising under or based upon any Law, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and seek indemnity pursuant to control all negotiationsthis Article V (except for actions for specific performance, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing injunctive relief or other equitable relief pursuant to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheldSection 9.10); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Share Purchase Agreement (KAMAN Corp), Transition Services Agreement (KAMAN Corp)
Indemnification Procedures. With respect to any claim made or threatened against Promptly after receipt by a party entitled to seeking indemnification under this Section 9 (an "Indemnified PartyIndemnitee"), or compulsory process or request or other ) of notice of any loss, claim, damage pending or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9threatened Claim against it, such Indemnified Party Indemnitee shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice thereof to the party required Party from whom the Indemnitee is entitled to indemnify the Indemnified Party under seek indemnification pursuant to this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim); provided, however, provided that the failure of any Indemnified Party so to provide such notice to notify the Indemnifying Party shall not relieve the Indemnifying Party it of its obligations under this Section 9 any liability that it may have to any Indemnitee hereunder, except to the extent the Indemnifying Party demonstrates that it is materially prejudiced thereby. The Indemnifying Party shall be entitled to participate in the defense of such Claim and, to the extent that it elects within seven (7) days of its receipt of notice of the Claim from the Indemnitee, to assume control of the defense of such Claim (unless (i) the Indemnifying Party is materially prejudiced also a party to such proceeding and the Indemnifying Party has asserted a cross claim against the Indemnitee or a court has otherwise forfeits rights determined that such that joint representation would be inappropriate, or defenses by reason of such failure;
(ii) at the expense of the Indemnifying PartyParty fails to provide reasonable assurance to the Indemnitee of its financial capacity to defend the Indemnitee in such Proceeding) with counsel reasonably satisfactory to the Indemnitee and, after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense of such Claim, the Indemnifying Party shall not, as long as it diligently conducts such defense, be liable to the Indemnitee for any Litigation Costs subsequently incurred by the Indemnitee. The Indemnitee shall provide the Indemnifying Party with such information and cooperation with respect to such claim assistance as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available request with regard to the Claim. No compromise or settlement of any Claim may be effected by the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior Indemnitee's written consent of the Indemnifying Party; and
(v) upon reasonable prior noticeconsent, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); withheld or delayed, unless (2a) if there is no finding or admission of any violation of Law or any violation of the Indemnifying Party assumes rights of any person and no effect on any other claims that may be made against the defense of such claimIndemnitee, (b) the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter sole relief provided is monetary damages that are paid in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated full by the Indemnifying Party has a conflict of interest due to Party, and (c) the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that Indemnitee's rights under this Agreement are not available to the other, restricted by such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action compromise or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partysettlement.
Appears in 2 contracts
Sources: License Agreement (Prometheus Laboratories Inc), License Agreement (Prometheus Laboratories Inc)
Indemnification Procedures. With (a) In the event that any action, proceeding, complaint or litigation is commenced by a third party involving a claim for which the shareholders may be liable to a Indemnified Party hereunder (an "Asserted Liability"), the Indemnified Party shall promptly notify the Shareholder Representative in writing of such Asserted Liability (the "Claim Notice"); provided that no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the shareholders of any indemnification obligation hereunder unless (and then solely to the extent that) the shareholders are materially prejudiced by such delay. The Shareholder Representative shall have sixty (60) days (or less if the nature of the Asserted Liability requires) from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party whether or not the Shareholder Representative desires, at the shareholders' sole cost and expense and by counsel of its own choosing, which shall be reasonably satisfactory to the Indemnified Party, to defend against such Asserted Liability. If the Shareholder Representative undertakes to defend against such Asserted Liability, (i) the Shareholder Representative shall use its commercially reasonable best efforts to defend and protect the interests of the Indemnified Party with respect to such Asserted Liability, (ii) the Indemnified Party, prior to or during the period in which the Shareholder Representative assumes the defense of such matter, may take such reasonable actions as the Indemnified Party deems necessary to preserve any and all rights with respect to such matter, without such actions being construed as a waiver of the Indemnified Party's rights to defense and indemnification pursuant to this Agreement, (iii) the Shareholder Representative shall not, without the prior written consent of the Indemnified Party, consent to any settlement which (A) does not contain an unconditional release of the Indemnified Party from the subject matter of the settlement, (B) imposes any liabilities or obligations on the Indemnified Party, and (C) with respect to any claim made or threatened against a party entitled to indemnification under this Section 9 (an "non-monetary provision of such settlement, could, in the Indemnified Party")'s judgment, have a material adverse effect on the business operations, assets, properties or compulsory process prospects of the Company or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such the Indemnified Party is (for purposes of this clause (iii) an effect shall be deemed "material" if it involves $100,000 or may be entitled more) and (iv) in the event that the Shareholder Representative undertakes to indemnification under this Section 9defend against such Asserted Liability, such Indemnified Party shall (or with respect unless otherwise agreed to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of in writing between Parent and the Collateral ManagerShareholder Representative, the Collateral Manager Shareholder Representative shall cause such Indemnified Party to):
(i) give written notice be deemed to the party required to have agreed that it will indemnify the Indemnified Party under pursuant to, and subject to the conditions and limitations set forth in, the provisions of this Section 9 (Article IX. Notwithstanding the "Indemnifying Party") of such claim within 10 days after such claim is made or threatenedforegoing, which notice shall specify in reasonable detail any event, the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party shall have the right to provide such notice control, pay or settle any Asserted Liability which the Shareholder Representative shall have undertaken to defend so long as the Indemnifying Indemnified Party shall not relieve also waive any right to indemnification therefor by the Indemnifying Shareholder Representative. If the Shareholder Representative undertakes to defend against such Asserted Liability, the Indemnified Party of its obligations under this Section 9 except shall cooperate to the extent that reasonable (during regular business hours) with the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information Shareholder Representative and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate counsel in the investigation, defense and settlement of thereof. If the Indemnified Party desires to participate in any such claim;
(iv) subject to clause (v) below, neither incur any material expense defense it may do so at its sole cost and expense. If the Shareholder Representative does not undertake within the Notice Period to defend against nor release or settle such Asserted Liability, then the Shareholder Representative shall have the right to participate in any such claim or make any admission with respect thereto defense at the shareholders' sole cost and expense (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent out of the Indemnifying Party; and
(v) upon reasonable prior noticeEscrowed Consideration), afford to the Indemnifying Party the rightbut, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claimcase, the Indemnified Party must consent shall control the investigation and defense and may settle or take any other actions the Indemnified Party deems reasonably advisable without in writing any way waiving or otherwise affecting the Indemnified Party's rights to indemnification pursuant to this Agreement. The Indemnified Party and the entry of any settlementShareholder Representative agree to make available to each other, compromisetheir counsel and other representatives, all information and documents available to them which relate to such claim or entry of judgment in respect thereof (which consent shall not demand. The Indemnified Party and the Shareholder Representative and the Company and its employees also agree to render to each other such assistance and cooperation as may reasonably be unreasonably withheld); (2) if required to ensure the Indemnifying Party assumes the proper and adequate defense of such claimclaim or demand.
(b) In the event that a Indemnified Party should have a claim against the shareholders hereunder which it determines to assert, but which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, such claim shall be resolved in the Indemnifying Party manner described in the Escrow Agreement.
(c) The provisions of this Section 9.3 shall not apply to any of the provisions of Article X, which shall be liable for any fees governed solely and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated exclusively by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyterms thereof.
Appears in 2 contracts
Sources: Merger Agreement (21st Century Telecom Group Inc), Merger Agreement (RCN Corp /De/)
Indemnification Procedures. With respect (a) If Assignor or Assignee (each, an “Indemnified Party”) believes that a claim or other circumstance exists that has given or may reasonably be expected to any claim made or threatened against give rise to a party entitled to right of indemnification under this Section 9 Article VII (an "Indemnified Party"whether or not the amount of Damages relating thereto is then quantifiable), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall assert its claim for indemnification by giving written notice thereof (a “Claim Notice”) to the Party from which indemnification is sought (the “Indemnifying Party”) (i) if the event or with respect occurrence giving rise to Indemnified Parties that are directorssuch claim for indemnification is, officersor relates to, stockholdersa claim brought by a Person other than a Party or an Affiliate of a Party (a “Third Party”), members, partners, agents or employees promptly following receipt of the Collateral Manager, the Collateral Manager shall cause notice of such claim by such Indemnified Party or (ii) if the event or occurrence giving rise to such claim for indemnification is not, or does not relate to):
(i) give written notice , a claim brought by a Third Party, promptly after the discovery by such Indemnified Party of the circumstances giving rise to such claim for indemnity. Each Claim Notice shall describe the party required to indemnify claim in reasonable detail. The failure by the Indemnified Party under this Section 9 (to so notify, or any delay by the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to in notifying, the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 any indemnification obligation hereunder except and only to the extent that the rights of the Indemnifying Party is are materially prejudiced by such failure to give, or otherwise forfeits rights delay in giving, such notice.
(b) If any claim by an Indemnified Party under this Article VII relates to a claim filed or defenses made against an Indemnified Party by reason a Third Party (a “Third-Party Claim”), the Indemnifying Party may elect at any time to negotiate a settlement or compromise of such failure;
Third-Party Claim or to defend such Third-Party Claim, in each case, at its sole cost and expense and with its own counsel, if the Indemnifying Party provides written notice to the Indemnified Party that the Indemnifying Party intends to undertake such defense; provided, however, that the Indemnifying Party shall not have the right to negotiate a settlement or compromise of such Third-Party Claim or to defend such Third-Party Claim, notwithstanding the giving of such written acknowledgment, if (i) such claim seeks an injunction or other equitable relief, (ii) at the expense Indemnified Party shall have been advised by counsel that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to the Indemnifying Party, and in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests could be in conflict with those of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claimreasonable opinion of the Indemnified Party, upon reasonable prior notice, afford to the Indemnifying Party does not have the rightfinancial wherewithal to pay for such defense (provided, that prior to the Indemnified Party taking any action pursuant to this clause (iii), the Indemnifying Party shall have a reasonable opportunity to demonstrate to the Indemnified Party that the Indemnifying Party does have the financial wherewithal to pay for such defense), (iv) such Third-Party Claim involves, or could reasonably be expected to have a material effect on, any material matter or obligation of or relating to the Indemnified Party that is beyond the scope of the indemnification obligation of the Indemnifying Party pursuant to this Agreement, or (v) such Third-Party Claim could reasonably be expected to result in the Indemnified Party being obligated to pay Damages in excess of the amounts for which the Indemnifying Party could be liable to indemnify the Indemnified Party hereunder. In the event the Indemnifying Party does not have the right to negotiate a settlement or compromise of such Third-Party Claim or to defend such Third-Party Claim, the Indemnified Party may exercise control such negotiation or defense, using a single counsel (in its addition to local counsel) reasonably satisfactory to the Indemnifying Party, at the Indemnifying Party’s sole discretion cost and at its expense, to participate it being understood that counsels retained by the Parties in connection with the investigation, defense and settlement negotiation of such claim;this Agreement are deemed reasonably satisfactory.
(ivc) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent Notwithstanding anything to the entry of any judgment in respect thereofcontrary contained herein, in each case without except with the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed, no Indemnifying Party shall settle or compromise any Third-Party Claim or permit a default judgment or consent to an entry of judgment thereof unless such settlement, compromise or judgment (i) relates solely to money damages, (ii) provides for a full, unconditional and irrevocable release of the Indemnified Party with respect to the claim(s) being settled, and (iii) does not contain any admission or finding of wrongdoing on behalf of the Indemnified Party; and
. Notwithstanding anything to the contrary contained herein, if, within fifteen (v15) upon reasonable prior noticeBusiness Days after receipt from an Indemnified Party of any Claim Notice with respect to a Third-Party Claim, afford to the Indemnifying Party does not elect to defend such Third-Party Claim or if the rightIndemnifying Party does not have the right to defend such claim pursuant to Section 7.4(b), in such Indemnifying Party's sole discretion and Indemnified Party may, at such Indemnifying Party's sole expenseits option, to assume control the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals claim or negotiate a settlement or compromise of such claim, at the Indemnified Indemnifying Party’s sole cost and expense; provided, that the Indemnifying Party must may, at its sole cost and expense, participate in such defense or negotiation, and any such settlement or compromise shall be permitted hereunder only with the written consent in writing to of the entry of any settlementIndemnifying Party, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if , conditioned or delayed. If the Indemnifying Party assumes is not able to or elects not to defend, settle or compromise such Third-Party Claim, all of the defense of such claim, the Indemnifying Party shall not be liable for any fees Indemnified Party’s reasonable and documented out-of-pocket costs and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final defense, settlement or compromise, compromise of any such Indemnifying Party claim shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right be Damages subject to indemnification hereunder, but only to the extent expressly provided herein. The Parties shall render to each other such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such Third-Party Claim. The Party in charge of the defense shall keep the other Party fully apprised at all times as to the status of the defense or any settlement or compromise negotiations with respect thereto. If the Indemnifying Party is entitled, and elects, to defend any such claim, then the Indemnified Party shall not be entitled to appoint counsel to represent participate in such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to defense with separate counsel, at such Indemnified Party’s sole cost and expense.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Clearway Energy, Inc.), Membership Interest Purchase Agreement (Clearway Energy LLC)
Indemnification Procedures. With 14.3.1 If any Buyer Indemnified Party or Seller Indemnified Party, as the case may be, seeks to make a claim for indemnification (an “Indemnified Claim”) pursuant to Section 14.2.1 or Section 14.2.2, as applicable, other than in respect to any claim made or threatened against of a party Third Party Claim, the Party entitled to indemnification under this Section 9 (an "the “Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ”) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to notify the party required to indemnify the Indemnified Party under this Section 9 provide indemnity hereunder (the "“Indemnifying Party"”) in writing of such claim within 10 days after such claim is made or threatened, which notice shall specify specifying in reasonable detail the nature factual basis of the claim and such claim, stating the amount of Losses (or an if not known, a good faith estimate of the amountamount of Losses) and the method of the claim; providedcomputation thereof, howevercontaining a reference to any and all provisions of this Agreement with respect to which indemnification is being sought (each such notice, that the a “Claim Notice”). The failure of by any Indemnified Party to provide such notice to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations from liability under this Agreement which it may have to such Indemnified Party under Section 9 14.2 hereof except to the extent the Indemnifying Party shall have been prejudiced with respect to such individual indemnified claim in any material respect as a result of such failure. The Indemnifying Party and the Indemnified Party shall endeavor to negotiate in good faith a resolution of any dispute described in a Claim Notice and, if not resolved through negotiations within sixty (60) days after the delivery of the Claim Notice, such dispute shall be resolved by litigation as provided in Section 16.5.
14.3.2 In the event that any claim is asserted in writing by any Person other than a Buyer Indemnified Party or a Seller Indemnified Party or any Proceeding is commenced or threatened in writing by any Person other than a Buyer Indemnified Party or a Seller Indemnified Party involving a claim for which an Indemnifying Party may be obligated to indemnify an Indemnified Party (a “Third Party Claim”), the Indemnified Party shall give written notice to the Indemnifying Party promptly (and in any event within thirty (30) days) after the Indemnified Party receives written notification of the facts giving rise to such Third Party Claim, specifying in reasonable detail the factual basis of the Third Party Claim, stating the amount of Losses (or if not known, a good faith estimate of the amount of Losses) and the method of computation thereof, containing a reference to any and all provisions of this Agreement with respect to which indemnification is being sought. The failure of an Indemnified Party to provide notice in accordance with this Section 14.3.2, or any delay in providing such notice, shall not constitute a waiver of that Indemnified Party’s claims to indemnification pursuant to Section 14.2, except to the extent that (i) the Indemnifying Party is materially shall have been prejudiced or otherwise forfeits rights or defenses by reason in any material respect as a result of such failure;
, or (ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available notice is not delivered to the Indemnifying Party at prior to the expiration of the applicable survival period set forth in Section 14.1. Any such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford notice to the Indemnifying Party of a Third Party Claim shall be accompanied by a copy of any papers theretofore served on or delivered to the rightIndemnified Party in connection with such Third Party Claim.
(a) In the event of receipt of notice of a Third Party Claim from an Indemnified Party pursuant to this Section 14.3.2, which the Indemnifying Party may exercise will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 14.3.2, and the Indemnified Party shall be permitted to participate in the defense thereof and to employ separate counsel of its sole discretion and choice for such purpose at its expenseown expense (except as otherwise provided in the last sentence of this Section 14.3.2). After written notice by the Indemnifying Party to the Indemnified Party of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to participate such Indemnified Party for any legal fees or expenses subsequently incurred by such Indemnified Party for its own account. Whether the Indemnifying Party or the Indemnified Party is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and settlement shall diligently and promptly pursue the resolution thereof. The party conducting the defense thereof shall at all times act as if all Losses relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Losses therefrom. The Indemnified Party shall, and shall cause each of such claim;
its Affiliates and Representatives to, reasonably cooperate with the Indemnifying Party in connection with any Third Party Claim. Notwithstanding anything to the contrary in this Section 14.3.2(a), (ivi) subject in any event the Indemnified Party shall have the right to clause (v) belowcontrol, neither incur any material expense to defend against nor release pay or settle any such claim or make any admission with respect thereto Third Party Claim which the Indemnifying Party shall have undertaken to defend so long as (other than routine or incontestable admissions or factual admissions 1) the failure to make of which would expose such Indemnified Party shall also waive any right to unindemnified liabilityindemnification therefor by the Indemnifying Party, and (2) nor permit a default or the consent to the entry of any judgment judgment, or the entry into any settlement, compromise or discharge, with respect to any such Third Party Claim, (I) does not impose monetary damages, injunctive or other equitable relief against the Indemnifying Party or any of its Affiliates, and (II) does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnifying Party or any of its Affiliates, and (ii) the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party (x) for any period after notice thereof during which the Indemnifying Party has failed to assume the defense thereof, and (y) if, based on the advice of counsel, a conflict of interest exists between the Indemnifying Party and the Indemnified Party in respect thereofof the matters subject to such Third Party Claim.
(b) The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, consent to the entry of any judgment, or enter into any settlement, compromise or discharge, with respect to any Third Party Claim, and the Indemnified Party shall be entitled to withhold its consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims that (i) does not involve as the sole remedy monetary damages that are fully borne by the Indemnifying Party, (ii) does not contain an unconditional release of the Indemnified Party from all liabilities with respect to such Third Party Claim, (iii) imposes injunctive or other equitable relief against the Indemnified Party or any of its Affiliates, or (iv) contains or involves an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Party or any of its Affiliates. Except as expressly provided in each case this Agreement, the Indemnified Party shall not consent to the entry of any judgment, or enter into any settlement, compromise or discharge of any Third Party Claim without the prior written consent of the Indemnifying Party; and, which may be conditioned or delayed in its reasonable discretion.
(vc) upon reasonable prior notice, afford to the If an Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the makes any payment on an Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claimClaim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatsubrogated, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests extent of the Indemnifying Party such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or that either an other claims or benefits of the Indemnified Party or the Indemnifying Party has defenses that are not available with respect to such claim.
(d) Notwithstanding anything in this Article 14 to the othercontrary, such Indemnifying in no event shall the Buyer Indemnified Parties be required to deliver any notice of any Third Party Claim relating to the matters for which the Buyer Parties are indemnified pursuant to Sections 14.2.2(c), 14.2.2(d), 14.2.2(e) and 14.2.2(f) and which Third Party Claim had been made or was in existence prior to the Initial Closing Date.
14.3.3 The Parties agree that any indemnification payments made with respect to this Agreement, including under this Section 14.3, shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel be treated for all Indemnified Parties in connection with any one action Tax purposes as an adjustment to the purchase price hereunder unless otherwise required by Law (including by a determination of a Tax authority that, under applicable Law, is not subject to further review or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyappeal).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Erp Operating LTD Partnership), Asset Purchase Agreement (Avalonbay Communities Inc)
Indemnification Procedures. With respect to any claim made or threatened against Promptly after receipt by a party entitled to claim indemnification under this Section 9 hereunder (an "“Indemnified Party"), or compulsory process or request or other ”) of notice of the commencement of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9action, such Indemnified Party shall (or with shall, if a claim for indemnification in respect thereof is to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause be made against a party hereto obligated to indemnify such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "an “Indemnifying Party") of such claim within 10 days after such claim is made or threatened”), which notice shall specify notify the Indemnifying Party in reasonable detail writing thereof, but the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party omission so to provide such notice to notify the Indemnifying Party shall not relieve it from any liability which it may have to such Indemnified Party other than under this Section 5.3 and shall only relieve it from any liability which it may have to such Indemnified Party under this Section 5.3 if and to the extent the Indemnifying Party is prejudiced by such omission. In case any such action shall be brought against any Indemnified Party and it shall notify the Indemnifying Party of its obligations under this Section 9 except the commencement thereof, the Indemnifying Party shall be entitled to participate in and, to the extent that it shall wish, to assume and undertake the defense thereof with counsel satisfactory to such Indemnified Party, and, after notice from the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, its election so to assume and undertake the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claimthereof, the Indemnifying Party shall not be liable to such Indemnified Party under this Section 5.3 for any fees legal expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; if the Indemnified Party retains its own counsel, then the Indemnified Party shall pay all fees, costs and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except counsel; provided, however, that, if the defendants in any such action include both the Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or that either an Indemnified Party or additional to those available to the Indemnifying Party has defenses that are not available or if the interests of the Indemnified Party reasonably may be deemed to conflict with the otherinterests of the Indemnifying Party, such Indemnifying the Indemnified Party shall pay have the right to select one separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and disbursements of one counsel (in addition other expenses related to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior participation to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, be reimbursed by the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyas incurred.
Appears in 2 contracts
Sources: Registration Rights Agreement (NewLead Holdings Ltd.), Registration Rights Agreement (Cyalume Technologies Holdings, Inc.)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Section 9 Agreement shall be asserted and resolved as follows:
(a) A party claiming indemnification under this Agreement (an "Indemnified PartyINDEMNIFIED PARTY"), or compulsory process or request or other notice ) shall with reasonable promptness (i) notify the party from whom indemnification is sought (the "INDEMNIFYING PARTY") of any loss, claim, damage third-party claim or liability served upon an claims asserted against the Indemnified Party, Party ("THIRD PARTY CLAIM") for which such Indemnified indemnification is sought and (ii) transmit to the Indemnifying Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or a copy of all papers served with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
claim (iif any) give and a written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying PartyCLAIM NOTICE") of such claim within 10 days after such claim is made or threatened, which notice shall specify containing a description in reasonable detail of the nature of the claim and the amount (or Third Party Claim, an estimate of the amount) amount of damages attributable to the Third Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim; provided, however, that ) and the failure basis of the Indemnified Party's request for indemnification under this Agreement. Within 15 days after receipt of any Indemnified Party to provide such notice to Claim Notice (the "ELECTION PERIOD"), the Indemnifying Party shall not relieve notify the Indemnified Party (i) whether the Indemnifying Party of disputes its obligations under this Section 9 except potential liability to the extent that Indemnified Party with respect to such Third Party Claim and (ii) whether the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) desires, at the sole cost and expense of the Indemnifying Party, provide to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party such information and cooperation with respect to such claim as notifies the Indemnified Party within the Election Period that the Indemnifying Party may elects to assume the defense of the Third Party Claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this SECTION 11.3(a). The Indemnifying Party shall have full control of such defense and proceedings. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party, to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably requiredeem necessary or appropriate to protect its interests. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including, without limitation, the making appropriate personnel available to of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. Except as otherwise provided herein, the Indemnified Party may participate in, but not control, any defense or settlement of any Third Party claim controlled by the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought pursuant to this SECTION 11.3 and shall bear its own costs and expenses with respect to such claim, upon reasonable prior notice, afford to participation. If the Indemnifying Party fails to notify the right, which Indemnified Party within the Election Period that the Indemnifying Party may exercise in its elects to defend the Indemnified Party pursuant to the preceding paragraph, or if the Indemnifying Party elects to defend the Indemnified Party but fails to prosecute or settle the Third Party Claim as herein provided, then the Indemnified Party shall have the right to defend, at the sole discretion cost and at its expenseexpense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to participate in the investigation, a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this SECTION 11.3, and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnifying Party shall not settle or compromise any Third Party Claim unless (i) the terms of such claim;
compromise or settlement require no more than the payment of money (ivi.e., such compromise or settlement does not require the Indemnified Party to admit any wrongdoing or take or refrain from taking any action), (ii) subject the full amount of such monetary compromise or settlement will be paid by the Indemnifying Party, and (iii) the Indemnified Party receives as part of such settlement a legal, binding and enforceable unconditional satisfaction and/or release, in form and substance reasonably satisfactory to clause (v) belowit, neither incur providing that such Third Party Claim and any material expense to defend against nor release or settle any such claim or make any admission claimed lability of the Indemnified Party with respect thereto (other than routine is being fully satisfied by reason of such compromise or incontestable admissions or factual admissions settlement and that the failure to make of which would expose such Indemnified Party is being released from any and all obligations or liabilities it may have with respect thereto. The Indemnified Party shall not settle or admit liability to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case Third Party Claim without the prior written consent of the Indemnifying Party unless (x) the Indemnifying Party has disputed its potential liability to the Indemnified Party; and, and such dispute either has not been resolved or has been resolved in favor of the Indemnifying Party or (y) the Indemnifying Party has failed to respond to the Indemnified Party's Claim Notice.
(vb) upon reasonable prior noticeIn the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim, afford the Indemnified Party shall transmit to the Indemnifying Party a written notice (the right"INDEMNITY NOTICE") describing in reasonable detail the nature of the claim, in an estimate of the amount of damages attributable to such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, claim to assume the defense extent feasible (which estimate shall not be conclusive of the final amount of such claim, including, without limitation, ) and the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals basis of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel request for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyunder this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cornell Corrections Inc), Asset Purchase Agreement (Cornell Corrections Inc)
Indemnification Procedures. With respect (a) In the event that any Action is threatened or commenced by a Third Party involving a claim for which a party may be required to provide indemnity (an “Indemnifying Party”) to any claim made or threatened against a other party entitled to indemnification under this Section 9 (an "“Indemnified Party"”) hereunder (an “Asserted Liability”), or compulsory process or request or other notice the Indemnified Party promptly shall notify the Indemnifying Party of such Asserted Liability in a writing that (i) describes such Asserted Liability in reasonable detail (including the facts underlying each particular claim and an identification of particular sections of this Agreement pursuant to which indemnification is being sought); (ii) attaches copies of any loss, claim, damage or liability served material written evidence upon an Indemnified Party, for which such Indemnified Party Asserted Liability is or may be entitled based (provided that to indemnification under this Section 9the extent such written evidence is not reasonably available at such time, such the Indemnified Party shall so indicate, and shall promptly provide such evidence when it becomes available); and (or with respect iii) sets forth, to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Managerextent possible, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify estimated amount of Losses for which the Indemnified Party under this Section 9 may be liable (the "Indemnifying Party") of such claim within 10 days after such claim is made “Claim Notice”); provided that no delay or threatened, which notice shall specify in reasonable detail failure on the nature part of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party in giving any Claim Notice shall not relieve the Indemnifying Party of its obligations under this Section 9 any indemnification obligation hereunder except to the extent that the Indemnifying Party is materially prejudiced by such delay or otherwise forfeits rights or defenses failure. The Indemnifying Party shall have forty-five (45) days from its receipt of a Claim Notice (the “Notice Period”) to notify the Indemnified Party whether the Indemnifying Party desires, at the Indemnifying Party’s sole cost and expense and by reason counsel of its own choosing, to assume and control the defense of an Asserted Liability. If the Indemnifying Party undertakes to assume and control the defense of an Asserted Liability, (i) the Indemnifying Party shall defend against such failure;
Asserted Liability and (ii) the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), consent to any settlement that (A) does not contain a full release of the Indemnified Party from the subject matter of the settlement, (B) requires an express admission of wrongdoing by the Indemnified Party or (C) provides for injunctive or other non-monetary relief affecting the Indemnified Party; provided that the Indemnifying Party shall not be entitled to assume the defense of an Asserted Liability and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (1) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (2) the primary objective of such Asserted Liability is to seek injunctive or other equitable relief against the Indemnified Party, (3) the Indemnified Party’s potential Losses in excess of the Cap are reasonably expected to significantly exceed the Indemnifying Party’s potential indemnification obligations hereunder, (4) the Indemnifying Party does not agree in writing that it would be obligated to pay all Losses arising from or related to such Asserted Liability if such claim was valid and indemnifiable, or (5) such Asserted Liability relates to an alleged violation of Environmental Laws that would reasonably be expected to materially affect the Indemnified Party’s then current business, operations or real property; provided, further, that the Indemnifying Party shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of the Indemnifying Party, provide the Indemnifying Party such information ) and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense of such Asserted Liability and the Indemnified Party shall not consent to any settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case Asserted Liability without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld, conditioned or delayed); (2) if . If the Indemnifying Party assumes undertakes to assume and control the defense of an Asserted Liability, the Indemnified Party shall cooperate fully with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof, including (x) procuring potential witnesses and witness statements, (y) promptly furnishing documentary evidence to the extent available to it or its Affiliates and (z) providing access to any other relevant party, including any Representatives of the parties as reasonably needed, to ensure the proper and adequate defense of an Asserted Liability. The Indemnified Party may participate in, but not control, any proceeding with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense. Notwithstanding the foregoing, in any event, the Indemnified Party shall have the right to settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend; provided that in the event that the Indemnified Party exercises its right to settle an Asserted Liability, then the Indemnified Party irrevocably and unconditionally waives any right to indemnification by the Indemnifying Party with respect to the Asserted Liability; provided, further that the Indemnified Party unconditionally releases the Indemnifying Party from any and all liabilities as part of any such claimsettlement.
(b) If the Indemnifying Party (i) does not undertake within the Notice Period to assume and control the defense of an Asserted Liability or (ii) after assuming the defense of an Asserted Liability, fails to prosecute or withdraws from the defense, then the Indemnified Party shall have the right to control the investigation, defense and settlement of the Asserted Liability at the Indemnifying Party’s expense. In the case of clause (i) of the preceding sentence, the Indemnifying Party shall not be liable for have the right to participate in any fees such defense at its sole cost and expenses of counsel for any expense; provided, however, that the Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by shall not consent to any settlement of an Asserted Liability without the Indemnifying Party has a conflict of interest due to the conflicting interests prior written consent of the Indemnifying Party and the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or that either delayed). If an Indemnified Party or settles an Asserted Liability it is defending pursuant to this Section 9.4(b) without obtaining the Indemnifying Party has defenses that are not available Party’s prior written consent to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (settlement in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out violation of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromiseimmediately preceding sentence, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, then the Indemnifying Party shall be relieved of its indemnification obligations hereunder in respect of such Asserted Liability.
(c) In the event that any Indemnified Party has a claim against any Indemnifying Party under this ARTICLE IX for Losses not be entitled to appoint counsel to represent involving a claim by a Third Party that such Indemnified Party nor believes gives rise to a claim for indemnification in accordance with the terms hereunder, the Indemnified Party promptly shall notify the Indemnifying Party reimburse of such claim in a writing that (i) describes such claim in reasonable detail (including the facts underlying such claim and an identification of particular sections of this Agreement pursuant to which indemnification is being sought); (ii) attaches copies of any material written evidence upon which such claim is based (provided that to the extent such written evidence is not reasonably available at such time, the Indemnified Party shall so indicate, and shall promptly provide such evidence when it becomes available); and (iii) sets forth, to the extent possible, the estimated amount of Losses for which the Indemnifying Party may be liable; provided that no delay or failure on the part of the Indemnified Party in giving any costs notice pursuant to this Section 9.4(c) shall relieve the Indemnifying Party of counsel any indemnification obligation hereunder except to the extent that the Indemnifying Party is materially prejudiced by such Indemnified Partydelay or failure.
Appears in 2 contracts
Sources: Purchase Agreement (Alcoa Corp), Purchase Agreement (Kaiser Aluminum Corp)
Indemnification Procedures. With respect The following provisions shall apply to any claim made or threatened against a party entitled Person seeking indemnification pursuant to indemnification under this Section Article 9 (an "Indemnified Party"), ) from or compulsory process or request or other notice against the assertion of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled claim referred to indemnification under this in Section 9, such 9 (a "Covered Claim").
(a) The Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees give prompt notice of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice Covered Claim to the party required to indemnify the Indemnified Party under this Section 9 Cantor (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim); provided, however, that the failure of any Indemnified Party to provide such give prompt notice to the Indemnifying Party shall will not relieve the Indemnifying Party of its obligations under this Section 9 any liability hereunder (except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses has suffered actual material prejudice by reason of such failure;).
(b) Within 10 Business Days of receipt of notice from the Indemnified Party pursuant to this Section 9.3, the Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume the defense of a Covered Claim. If the Indemnifying Party assumes such defense, the Indemnifying Party may select counsel, which counsel will be reasonably acceptable to the Indemnified Party.
(c) If the Indemnifying Party:
(i) does not assume the defense of any Covered Claim in accordance with this Section 9.3; or
(ii) at the expense of having so assumed such defense, unreasonably fails to defend against such Covered Claim; then, upon fifteen Business Days written notice to the Indemnifying Party, provide the Indemnified Party may assume the defense of such Covered Claim with counsel chosen by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and the cost of such information defense (including such counsel's reasonable fees and cooperation with respect to such claim as expenses) shall be paid by the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;Party.
(iiid) in The party controlling the event suit is brought with respect defense of a Covered Claim will have the right to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in with respect thereofto, in each case without or otherwise settle, such Covered Claim with the prior written consent of the Indemnifying other party, which consent will not be unreasonably withheld or delayed; provided, however, that such other party may withhold its consent if any such judgment or settlement imposes a monetary or continuing non-monetary obligation on the Indemnified Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense or does not include an unconditional release of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests its affiliates from all elements of the Covered Claim.
(e) The Indemnifying Party and the Indemnified Party will cooperate, and cause their respective affiliates to cooperate, in the defense or that either an Indemnified prosecution of any Covered Claim. The Indemnifying Party or the Indemnifying Party has defenses that are not available Indemnified Party, as the case may be, will have the right to the otherparticipate, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's at its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions expense, in the same jurisdiction arising out defense or settlement of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified PartyCovered Claim.
Appears in 2 contracts
Sources: Exclusive License Agreement (Grant Life Sciences, Inc.), Exclusive License Agreement (Grant Life Sciences, Inc.)
Indemnification Procedures. With (a) All claims for indemnification by any Indemnified Party under this Article 9 with respect to any claim made or threatened against a third-party entitled to indemnification under claims shall be asserted and resolved as set forth in this Section 9 9.4. In the event that any written claim or demand for which either SXCP or Raven Holdings, as the case may be (an "Indemnified “Indemnifying Party"”), or compulsory process or request or other notice of would be liable to any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party hereunder is asserted against or may sought to be entitled to indemnification under this Section 9collected from any Indemnified Party by a third party, such Indemnified Party shall promptly, but in no event more than 30 days following such Indemnified Party’s receipt of such claim or demand, notify the Indemnifying Party of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the “Claim Notice”). Unless the matter relating to the Claim Notice requires quicker action, the Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (such 30-day or shorter period, the “Notice Period”) to notify the Indemnified Party (i) whether the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand and (ii) whether it desires, to the extent it has the right pursuant to the other provisions of this Section, to defend the Indemnified Parties that are directorsParty against such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, officers, stockholders, members, partners, agents or employees of the Collateral Managerand shall be paid by, the Collateral Manager shall cause such Indemnifying Party.
(b) Except as hereinafter provided, in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, the Indemnifying Party shall have the right to):
, at its sole cost and expense, defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense with counsel reasonably acceptable to the Indemnified Party so long as such claim or demand does not involve (i) give written notice to a conflict of interest between the party required to indemnify Indemnifying Party or its selected counsel, on the one hand, and the Indemnified Party, on the other hand, (ii) any defenses that the Indemnified Party could make in good faith that the Indemnifying Party could not make in good faith or otherwise under applicable Law or rules of professional conduct or (iii) any request by the third party asserting such claim or demand for an injunction (whether temporary or permanent) or other remedy in equity which if successful could reasonably be expected to adversely affect the business, assets or operations of the Purchaser or its Affiliates (including Raven or Jacob). If any Indemnified Party desires to participate in any such defense, it may do so at its sole cost and expense.
(c) Except as provided below in this Section 9 (Section, the "Indemnified Party shall not settle a claim or demand without the consent of the Indemnifying Party". The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which the Indemnified Party will not withhold unreasonably), settle, compromise or offer to settle or compromise any such claim or demand on a basis that (i) would restrict or impair the future business activity, or conduct of the Indemnified Party or any Affiliate thereof, (ii) would not result in a full release of the Indemnified Party or (iii) provides for any remedy other than the payment of monetary damages.
(d) If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand or, if the same be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense), shall be the liability of the Indemnifying Party hereunder, and the Indemnified Party shall be entitled to settle or compromise such claim or demand in its sole and absolute discretion.
(e) To the extent the Indemnifying Party shall direct, control or participate in the defense or settlement of any third-party claim or demand, the Indemnified Party will give the Indemnifying Party and its counsel, without charge, access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party. The Indemnified Party shall use its commercially reasonable efforts to assist the Indemnifying Party in the defense of all such claims or demands. Notwithstanding the foregoing, the Indemnified Party shall have the right to employ separate counsel at the Indemnifying Party’s expense and solely to control its own defense of such claim within 10 days after such claim is made asserted claim, demand or threatenedliability if in the reasonable written opinion of counsel to the Indemnified Party, which notice shall specify in reasonable detail a conflict or potential conflict exists between the nature of the claim Indemnifying Party and the amount (or an estimate Indemnified Party that would make such separate representation necessary under the applicable canons of the amount) of the claimethics; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve settle or compromise any such claim or demand without the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense consent of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect consent not to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (SunCoke Energy Partners, L.P.)
Indemnification Procedures. With respect to any claim made or threatened against (a) In order for a party entitled to Person that has rights of indemnification under this Section 9 Agreement (each, an "“Indemnified Party")”) to be entitled to any indemnification provided for under this Agreement, such Indemnified Party must notify the indemnifying party (the “Indemnifying Party”) in writing, and in reasonable detail, of a claim or compulsory process or request or other demand made by any Person against the Indemnified Party (a “Third-Party Claim”) as promptly as reasonably possible after receipt by such Indemnified Party of notice of any lossthe Third-Party Claim; provided that the failure to give such notification on a timely, claimcomplete or accurate basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure. Thereafter, damage or liability served upon the Indemnified Party shall deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third-Party Claim.
(b) If a Third-Party Claim is made against an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, be entitled to participate in the investigationdefense thereof and, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expenseif it elects, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the thereof. Should an Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing elect to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes assume the defense of such claima Third-Party Claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any to the Indemnified Party for legal expenses subsequently incurred thereafter by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such claim except thatdefense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense.
(c) Notwithstanding the foregoing, the Indemnified Party, at the Indemnifying Party’s expense, shall have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-Party Claim if (i) such Third-Party Claim involved any criminal allegations or allegations of fraud (including Fraud) against the Indemnified Party, (ii) involved any of the Indemnified Party’s material customers, payors, or suppliers, (iii) the Indemnified Party reasonably determines that counsel designated by believes an adverse determination with respect to such Third-Party Claim would be detrimental to or injure the Indemnified Party’s reputation or future business prospects, or (iv) such Third-Party Claim seeks an injunction or other equitable or non-monetary relief against the Indemnified Party. Additionally, the Indemnifying Party has shall lose its right to contest, defend, litigate and settle a conflict Third-Party Claim if it shall fail to accept a tender of interest due the defense of the Third-Party Claim in the manner set forth herein or it shall fail to diligently contest the Third-Party Claim in the reasonable judgment of the Indemnified Party.
(d) If the Indemnifying Party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s written request and at its expense) the provision to the conflicting interests 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. Notwithstanding the foregoing, no Indemnified Party shall be obligated to provide (i) information that is subject to attorney-client privilege or attorney work-product, or (ii) information that such party reasonably believes to be market sensitive, competitive or strategic in nature.
(e) Whether or not an Indemnifying Party shall have assumed the defense of a Third-Party Claim, no Indemnified Party shall admit any Liability with respect to, consent to the entry of any judgment, or settle, compromise or discharge any Third-Party Claim without the prior written consent (which shall not be unreasonably withheld, conditioned, or delayed) of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or Party. If the Indemnifying Party has defenses that are not available to shall control the other, such Indemnifying defense of any Third-Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderClaim, the Indemnifying Party shall not admit any Liability with respect to, consent to the entry of any judgment, or settle, compromise or discharge, any such Third-Party Claim without the prior written consent (which shall not be entitled to appoint counsel to represent such Indemnified Party nor shall unreasonably withheld, conditioned, or delayed) of the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
(f) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by applicable Law.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Marin Software Inc), Asset Purchase Agreement (SharpSpring, Inc.)
Indemnification Procedures. With respect to any claim made or threatened against a (a) A party entitled to claiming indemnification under this Section 9 Agreement (an "“Indemnified Party")”) for any Claim or Claims asserted by a third party, or compulsory process or request or other notice including, in the case of any lossBuyer, claima Covered Third Party Claim (collectively, damage or liability served upon an Indemnified Party, for which such Indemnified “Third Party is or may be entitled to indemnification under this Section 9, such Indemnified Party Claims”) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):promptly:
(i) give written notice to notify, within thirty (30) days after receipt of such claim, the party required to indemnify from whom indemnification is sought (the “Indemnifying Party”) of any Third-Party Claim asserted against the Indemnified Party which could give rise to a right of indemnification under this Section 9 Agreement; and
(ii) transmit to the "Indemnifying Party"Party a written notice (“Third Party Claim Notice”) of such claim within 10 days after such claim is made or threatened, which notice shall specify describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim and the amount (or if any), an estimate of the amount) amount of Losses attributable to the Third Party Claim, if reasonably possible, and the basis of the claimIndemnified Party’s request for indemnification under this Agreement.
(b) Within thirty (30) days after receipt of any Third Party Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party:
(i) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Agreement with respect to such Third Party Claim; and
(ii) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(c) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings. Such proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 7.4. The Indemnifying Party shall have full control of such defense and proceedings including any compromise or settlement thereof; provided, however, that any such compromise or settlement involving a dollar amount in excess of the limitations set forth in Section 7.5(c), non-monetary obligations of the Indemnified Party, or otherwise having a direct effect upon its continuing operations or the business shall be subject to the consent of the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including, without limitation, the making of any related counterclaim against the Person asserting the Third Party Claim or any cross-complaint against any Person. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 7.4 and, except as expressly provided, shall bear its own costs and expenses with respect to such participation.
(d) If the Indemnifying Party (i) fails to notify the Indemnified Party as set forth in subsection (c), or if (ii) fails to diligently and promptly prosecute or settle the Third Party Claim, then the Indemnified Party shall have the right to defend at the sole cost and expense of the Indemnifying Party, the Third Party Claim. The Indemnified Party shall have full control of such defense and proceeding; provided, however, that the Indemnified Party may not enter into, without the Indemnifying Party’s consent, which shall not be unreasonably withheld or delayed, any compromise or settlement of such Third Party Claim. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.4, and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. For purposes of this Section, “settlement” means any settlement under Applicable Law.
(e) In the event an Indemnified Party should have a Claim against an Indemnifying Party hereunder which does not involve a Third Party Claim, the Indemnified Party shall transmit to the Indemnifying Party a written notice (the “Indemnity Notice”) describing in reasonable detail the nature of the Claim, an estimate of the amount of Losses attributable to such Claim, the basis of the Indemnified Party’s request for indemnification under this Agreement and the amount for which a Claim for indemnification is made, taking into account the limitations set forth in Section 7.8. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such Claim, the Claim specified by the Indemnified Party in the Indemnity Notice shall be deemed a Liability of the Indemnifying Party hereunder. If the Indemnifying Party has timely disputed such Claim, as provided above, such dispute shall be resolved in accordance with the dispute resolutions provisions set forth in Section 7.4 of this Agreement.
(f) The failure of any an Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under for a claim required by this Section 9 except to 7.4 shall cause the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, forfeit the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if receive the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable indemnification it would have otherwise had for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyunder this Article 7.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Adept Technology Inc)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to indemnification Each Indemnitee (as defined under this Section 9 (an "Indemnified Party"10(a), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give prompt written notice to the party required Indemnifying Party of any claim with respect to indemnify the Indemnified Party under which it seeks indemnification or contribution pursuant to this Section 9 Agreement (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party the Indemnitee to provide promptly deliver such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 any liability, except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of in its ability to defend such failure;
claim) and (ii) permit such Indemnifying Party, as applicable, to assume the defense of such claim with counsel selected by such Indemnifying Party and reasonably satisfactory to the Indemnitee; provided, however, that any Indemnitee entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless (A) the Indemnifying Party has agreed in writing to pay such fees and expenses, (B) the Indemnifying Party shall have failed to assume the defense of such claim within five (5) days of delivery of the written notice of the Indemnitee with respect to such claim or failed to employ counsel selected by such Indemnifying Party and reasonably satisfactory to the Indemnitee, or (C) in the reasonable judgment of the Indemnitee, based upon advice of its counsel, a conflict of interest may exist between the Indemnitee and the Indemnifying Party with respect to such claims (in which case, if the Indemnitee notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, provide the Indemnifying Party shall not have the right to assume the defense of such information claim on behalf of the Indemnitee). If the Indemnifying Party assumes the defense of the claim, it shall not be subject to any liability for any settlement or compromise made by the Indemnitee without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). In connection with any settlement negotiated by an Indemnifying Party, no Indemnifying Party shall, and cooperation with no Indemnitee shall be required by an Indemnifying Party to, (I) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect to such claim as the Indemnifying Party may reasonably requireor litigation, including, without limitation, making appropriate personnel available (II) enter into any settlement that attributes by its terms any liability to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
Indemnitee, or (iiiIII) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofthat does not include as a term thereof a full dismissal of the litigation or proceeding with prejudice. In addition, in each case without the prior written consent of the Indemnitee, no Indemnifying Party shall consent to entry of any judgment or enter into any settlement which provides for any action on the part of the Indemnitee other than the payment of money damages which are to be paid in full by the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the . If an Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, fails or elects not to assume the defense of such claim, including, without limitation, the right a claim pursuant to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, clause (1B) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromiseabove, or entry of judgment in respect thereof (which consent shall is not be unreasonably withheld); (2) if the Indemnifying Party assumes entitled to assume or continue the defense of such claimclaim pursuant to clause (C) above, the Indemnifying Party shall not be liable for any fees have the right without prejudice to its right of indemnification hereunder to, in its discretion exercised in good faith and expenses upon advice of counsel for any Indemnified Party incurred thereafter in connection with counsel, to contest, defend and litigate such claim except and may settle such claim, either before or after the initiation of litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable, provided that, if such Indemnified Party reasonably determines that counsel designated at least five (5) days prior to any settlement, written notice of its intention to settle is given to the Indemnifying Party. If requested by the Indemnifying Party has a conflict of interest due Party, the Indemnitee agrees (at no expense to the conflicting interests of Indemnitee) to reasonably cooperate with the Indemnifying Party and the Indemnified Party or its counsel in contesting any claim that either an Indemnified Party or the Indemnifying Party has defenses that are not available elects to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partycontest.
Appears in 2 contracts
Sources: Securities Purchase Agreement (South Texas Oil Co), Securities Purchase Agreement (South Texas Oil Co)
Indemnification Procedures. With respect (a) Each party and any other indemnified persons shall be entitled to any claim made or threatened against a the indemnity described in this Article 4, provided that, in the case of third party claims, the following conditions are met (the party obliged to provide indemnification is referred to as the “Indemnifying Party,” and the party entitled to indemnification under this Section 9 (an "be indemnified is referred to as the “Indemnified Party"), or compulsory process or request or other notice ”):
(1) Promptly upon learning of any loss, claim, damage or liability served upon an Indemnified claim for which indemnification is sought from the Indemnifying Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such the Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of notify the Collateral Manager, the Collateral Manager shall cause such Indemnified Indemnifying Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice and shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice furnish to the Indemnifying Party all information known and reasonably available to the Indemnified Party related to such claim; provided that any failure to comply with the provisions of this clause (1) shall not relieve the Indemnifying Party of its indemnification obligations under this Section 9 except to the extent that such failure shall have adversely prejudiced the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason Party.
(2) In the event of the commencement of litigation on the basis of such failure;
(ii) at claim, the expense Indemnified Party shall tender the defense of such litigation to the Indemnifying Party, provide and the Indemnifying Party shall promptly assume and thereafter diligently prosecute the defense of such information claim, and cooperation with respect to such claim as the Indemnifying Party may reasonably requireshall bear all Damages in connection therewith, including, without limitation, making appropriate personnel available to using counsel selected by the Indemnifying Party at (which shall be subject to the Indemnified Party’s approval, which shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall be entitled to engage separate counsel and participate in such reasonable times as defense; provided that the fees and expenses and such separate counsel shall be paid by the Indemnified Party unless the interests of the Indemnified Party and the Indemnifying Party may request;
(iii) are in conflict so that they cannot be adequately represented by the same counsel, in which event suit is brought with respect to the reasonable fees and expenses of such claim, upon reasonable prior notice, afford to separate counsel shall be paid by the Indemnifying Party following a final determination of the right, which indemnification liabilities hereunder.
(3) Neither the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in nor the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or Indemnified Party shall settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior noticeother party, afford to which consent may be withheld in the Indemnifying Party the right, in such Indemnifying Party's other party’s sole discretion and at if such Indemnifying Party's sole expensesettlement would require the expenditure of funds by the other party or admit on behalf of, to assume the defense of such claim, including, without limitationor otherwise attribute to, the right other party any fault or misconduct. To the extent that both Limited Brands and the Company are required to designate counsel bear damages, claims, costs and expenses with respect to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such a particular claim, the Indemnified Party must consent intent of Limited Brands and the Company is that they shall bear such damages, claims, costs and expenses in writing proportion to the entry their respective degrees of any settlementresponsibility for such claim as allocated in this Article 4 or, compromiseif not allocated herein, then in accordance with their respective percentages of fault or entry of judgment in respect thereof responsibility for such claims.
(which consent shall not be unreasonably withheld); (2b) if the Indemnifying Party assumes the defense of such claimExcept as otherwise specifically set forth herein, the Indemnifying Party terms of this Article 4 shall not be liable provide the exclusive remedy for any fees monetary damages of Limited Indemnified Persons and expenses of counsel for any Company Indemnified Party incurred thereafter Persons with respect to Damages associated with the matters set forth in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partythis Agreement.
Appears in 2 contracts
Sources: Services Agreement (Express Parent LLC), Services Agreement (Express Parent LLC)
Indemnification Procedures. With respect to All claims for indemnification by a party under Article VI hereof (the party claiming indemnification and the party against whom such claims are asserted being hereinafter called the “Indemnified Party” and the “Indemnifying Party,” respectively) shall be asserted and resolved as follows:
(a) In the event that any claim made or threatened against a party entitled demand for Damages which an Indemnifying Party would be liable to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which Party hereunder is asserted against or sought to be collected from such Indemnified Party is or may be entitled to indemnification under this Section 9by a third party, such Indemnified Party shall with reasonable promptness give notice (the “Claim Notice”) to the Indemnifying Party of such claim or with respect demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees the extent then feasible (which estimate shall not be conclusive of the Collateral Manager, the Collateral Manager final amount of such claim and demand). The Indemnifying Party shall cause such Indemnified Party to):
(i) give written notice to the party required not be obligated to indemnify the Indemnified Party under this Section 9 Agreement with respect to any such claim or demand if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of this Agreement, and as a result of such failure, the Indemnifying Party’s ability to defend against the claim or demand is materially prejudiced. The Indemnifying Party shall have ten (10) days from the delivery or mailing of the Claim Notice (the "“Notice Period”) to notify the Indemnified Party (i) whether or not it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand, and (ii) whether or not it desires, at the cost and expense of the Indemnifying Party") of , to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized, but is not obligated, prior to and during the Notice Period, to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party. If the Indemnifying Party notifies the Indemnified Party within 10 days after the Notice Period that it desires to defend the Indemnified Party against such claim or demand, the Indemnifying Party shall, subject to the last sentence of this paragraph, have the right to control the defense against the claim by all appropriate proceedings and any settlement negotiations. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If the Indemnifying Party fails to respond to the Indemnified Party within the Notice Period or after electing to defend fails to commence or diligently pursue such defense, then the Indemnified Party shall have the right, but not the obligation, to undertake or continue the defense of and to compromise or settle (exercising reasonable business judgment) the claim or other matter, all on behalf, for the account and at the risk of the Indemnifying Party. Notwithstanding the foregoing, each party shall have the same right to participate in at its own expense and at its own risk, without either party having the right of control, any proceeding if (x) the claim, if successful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (y) the claim seeks any injunction or equitable relief against the Indemnified Party.
(b) If requested by the Indemnifying Party, the Indemnified Party agrees, at the Indemnifying Party’s expense, to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party elects to contest, or, if appropriate and related to the claim in question, in making any counterclaim against the person asserting the third party claim or demand, or any cross-complaint against any person. Except as provided above, no claim as to which indemnification is made sought under this Agreement may be settled without the consent of the Indemnifying Party.
(c) If any Indemnified Party should have a claim against the Indemnifying Party hereunder which does not involve a claim or threateneddemand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall promptly send a Claim Notice with respect to such claim to the Indemnifying Party, which notice Claim Notice shall specify describe in reasonable detail the nature of the claim and the amount (or such non-third-party claim, an estimate of the amount) amount of damages attributable to such non-third party claim, and the basis of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to Party’s request for indemnification under this Agreement. If the Indemnifying Party disputes such claim, such dispute shall not relieve be resolved by litigation in an appropriate court of competent jurisdiction.
(d) In connection with the Indemnifying Party matters for which indemnification is sought hereunder with respect to any third-party claim, upon execution of its obligations under this Section 9 except reasonable and customary confidentiality agreements, (i) Buyer agrees to give Sellers and their representatives reasonable access during regular business hours and upon five (5) days prior written notice to Buyer to the books, records and employees of Buyer to the extent that such reasonably relate to the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
matters to which the Claim Notice relates and (ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information Sellers agree to give Buyer and cooperation with respect its representatives reasonable access during regular business hours and upon five (5) days prior written notice to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available Sellers to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claimbooks, upon reasonable prior notice, afford records and employees of Sellers to the Indemnifying Party extent such reasonably relate to the right, matters to which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified PartyClaim Notice relates.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Polydex Pharmaceuticals LTD/Bahamas), Asset Purchase Agreement (Polydex Pharmaceuticals LTD/Bahamas)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to indemnification under this Section 9 (a) Promptly after receipt by an "Indemnified Party"), or compulsory process or request or other Party of notice of the commencement of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9action, such Indemnified Party shall (or with shall, if a claim in respect thereof is to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of be made against the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Indemnifying Party under this Section 9 (ARTICLE IX, notify the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify Party in reasonable detail the nature writing of the claim and commencement thereof; but the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party omission so to provide such notice to notify the Indemnifying Party shall not relieve it from any liability which it may have to any Indemnified Party otherwise than under this ARTICLE IX. In case any such action shall be brought against any Indemnified Party and it shall notify the Indemnifying Party of its obligations under this Section 9 except the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other Indemnifying Party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party (who shall not, except with the consent of the Indemnified Party, be counsel to the Indemnifying Party), and, after notice from the Indemnifying Party is materially prejudiced to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under this ARTICLE IX for any legal expenses of other counsel or otherwise forfeits rights or defenses any other expenses, in each case subsequently incurred by reason such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation. If the Indemnifying Party fails to notify the Indemnified Party within 15 days after receipt by the Indemnifying Party of written notice from the Indemnified Party of the commencement of such failure;
(ii) action that the Indemnifying Party elects to defend the Indemnified Party pursuant to this Section 9.4, or if the Indemnifying Party elects to defend the Indemnified Party pursuant to this Section 9.4 but fails diligently to prosecute the proceedings related to such claim as herein provided, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), such claim by all appropriate proceedings. No Indemnifying Party shall, without the written consent of the Indemnified Party, provide effect the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably requiresettlement or compromise of, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect thereofof which indemnification or contribution may be sought under this ARTICLE IX (whether or not the Indemnified Party is an actual or potential party to such action or claim) unless such settlement, in each case without the prior written consent compromise or judgment (i) includes an unconditional release of the Indemnifying Indemnified Party from all liability arising out of such action or 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; and.
(vb) upon reasonable prior notice, afford to In the event any Indemnified Party should have a claim against any Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such hereunder that does not involve a third-party claim, the Indemnified Party must consent in writing shall transmit to the entry Indemnifying Party a written notice (the “Indemnity Notice”) describing in reasonable detail the nature of any settlementthe claim, compromise, or entry an estimate of judgment in respect thereof the amount of Damages attributable to such claim to the extent feasible (which consent estimate shall not be unreasonably withheldconclusive of the final amount of such claim) and the basis of the Indemnified Party’s request for indemnification under this Agreement. Except as provided in Section 9.2(b)(iv); (2) , if the Indemnifying Party assumes does not notify the defense Indemnified Party within 15 days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such claim, the claim specified by the Indemnified Party in the Indemnity Notice shall be deemed a liability of the Indemnifying Party shall not be liable hereunder.
(c) In determining the amount of any Damages for any fees and expenses of counsel for any which the Indemnified Party incurred thereafter in connection with such claim except thatis entitled to indemnification under this ARTICLE IX, if such the gross amount of the indemnification will be reduced by (i) any insurance proceeds realized by the Indemnified Party reasonably determines that counsel designated and (ii) all amounts actually recovered by the Indemnified Party under contractual indemnities from third Persons.
(d) The date on which notification of a claim for indemnification is received as provided in Section 11.2 by the Indemnifying Party has a conflict shall determine whether such claim is timely made.
(e) From and after Closing, if any Party receives any refund of interest due Indemnified Taxes, such Party shall remit any such refund to the conflicting interests Party responsible for such Taxes pursuant to ARTICLE VIII.
(f) To the extent that this Section 9.4 is inconsistent with the provisions of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderARTICLE VIII, the Indemnifying Party provisions of ARTICLE VIII shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partycontrol.
Appears in 2 contracts
Sources: Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.), Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Any Indemnified Party shall (or with respect to Indemnified Parties that are directorsbe entitled, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give upon written notice to the party required Indemnifying Party, to indemnify the timely appointment of counsel by the Indemnifying Party for the defense of any Claim, which counsel shall be subject to the approval of the Indemnified Party. If, in the Indemnified Party’s reasonable judgment, a material conflict of interest exists between the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party at any time during the defense of the Indemnified Party, the Indemnified Party may appoint independent counsel of its choice for the defense of the Indemnified Party as to such Claim. In addition, regardless of whether the Indemnified Party has appointed counsel or selects independent counsel (a) the Indemnified Party shall not relieve have the right to participate in the defense of any Claim and approve any proposed settlement of such Claim (unless such settlement involves only the payment of money, the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced pays all amounts due in connection with or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Partysettlement and, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect part thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment is unconditionally released from all liability in respect thereof (of such Claim, in which consent case such approval shall not be unreasonably withheldrequired); and (2b) if all reasonable costs and expenses (including attorneys’ fees and costs) of the Indemnified Party shall be paid by the Indemnifying Party. If the Indemnifying Party assumes the defense of fails to timely pay such claimcosts and expenses (including attorneys’ fees and costs), the Indemnifying Indemnified Party shall have the right, but not the obligation, to pay such amounts and be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated reimbursed by the Indemnifying Party has for the same, together with interest thereon in accordance with Section 3.5 until paid in full. The Parties hereby acknowledge that it shall not be a conflict of interest due defense to the conflicting interests of the Indemnifying Party and a demand for indemnity that less than all Claims asserted against the Indemnified Party or that either an are subject to indemnification. If a Claim is covered by the Indemnifying Party’s liability insurance, the Indemnified Party shall not knowingly take or omit to take any action that would cause the Indemnifying Party has defenses that are insurer not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; Claim or to disclaim liability in respect thereof. Nothing contained herein shall be construed to create a benefit for a third party except for Mortgagee, Lenders, and (4) if any for other Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified PartyParties.
Appears in 2 contracts
Sources: Management Agreement, Hotel and Casino Management Agreement (Harrahs Entertainment Inc)
Indemnification Procedures. With respect to any claim made or threatened against a party 11.3.1 A Party believing that it is entitled to indemnification under this under, as applicable, Section 9 11.1 or Section 11.2 (an "“Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ”) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give prompt written notice notification to the party required to indemnify the Indemnified other Party under this Section 9 (the "“Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount”) of the claim; providedcommencement of any Claim for which indemnification may be sought or, if earlier, upon the assertion of any such Claim by a Third Party (it being understood and agreed, however, that the failure of any by an Indemnified Party to provide such give notice to the Indemnifying Party of a Claim as provided in this Section 11.3.1 shall not relieve the Indemnifying Party of its obligations indemnification obligation under this Section 9 Agreement except and only to the extent that such Indemnifying Party is actually materially prejudiced as a result of such failure to give notice). Within thirty (30) days after delivery of such notification, the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason may, upon written notice thereof to the Indemnified Party, assume control of the defense of such failure;Claim with counsel reasonably satisfactory to the Indemnified Party. If a Party believes that a Claim presented to it for indemnification is one as to which the Party seeking indemnification is not entitled to indemnification under, as applicable, Section 11.1 or Section 11.2, it shall so notify the Party seeking indemnification.
(ii) at the expense of the Indemnifying Party, provide 11.3.2 If the Indemnifying Party elects to assume the defense of such information Claim, the Indemnified Party may participate in such defense at its own expense; provided, that if the interests of the Indemnified Party and cooperation the Indemnifying Party with respect to such claim as Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under Applicable Law, ethical rules or equitable principles, the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith.
11.3.3 The Indemnifying Party at shall keep the Indemnified Party advised of the status of such reasonable times as Claim and the Indemnifying defense thereof and shall consider recommendations made by the Indemnified Party may request;
(iii) in the event suit is brought with respect thereto.
11.3.4 The Indemnified Party shall not agree to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and any settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case Claim without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the . The Indemnifying Party shall not be liable for agree to any fees settlement of such Claim or consent to any judgment in respect thereof that does not include a complete and expenses unconditional release of counsel for any the Indemnified Party incurred thereafter in connection from all liability with such claim except that, if such Indemnified Party reasonably determines respect thereto or that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and imposes any liability or obligation on the Indemnified Party or that either an adversely affects the Indemnified Party or without the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out prior written consent of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromiseIndemnified Party, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party which shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyunreasonably withheld.
Appears in 2 contracts
Sources: License, Development and Commercialization Agreement (MEI Pharma, Inc.), License, Development and Commercialization Agreement (MEI Pharma, Inc.)
Indemnification Procedures. With respect to Third Party Claims other than those relating to Taxes, all claims for indemnification by any claim made or threatened against a party entitled to indemnification under Indemnified Party hereunder shall be asserted and resolved as set forth in this Section 9 8.4. In the event that any written claim or demand for which ARCO or Purchaser, as the case may be (an "Indemnified PartyINDEMNIFYING PARTY"), or compulsory process or request or other notice of may be liable to any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party hereunder is asserted against or may sought to be entitled to indemnification under this Section 9collected from any Indemnified Party by a third party, such Indemnified Party shall promptly, but in no event later than 20 days following such Indemnified Party's receipt of such claim or demand, notify the Indemnifying Party of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the "THIRD PARTY CLAIM NOTICE") and in the event that an Indemnified Party shall assert a claim for indemnity under this Article VIII or Section 5.22(d), not including any Third Party Claim, the Indemnified Party shall notify the Indemnifying Party promptly following its discovery of the facts or circumstances giving rise thereto (together with a Third Party Claim Notice, a "CLAIM NOTICE"). The Indemnifying Party shall have no liability with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify any expenses incurred by the Indemnified Party under this Section 9 prior to the time the Claim Notice is delivered to the Indemnifying Party. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the "Indemnifying PartyNOTICE PERIOD") of to notify the Indemnified Party whether or not it desires to defend the Indemnified Party against such claim within 10 days after or demand. All costs and expenses incurred by an Indemnified Party in defending such claim or demand after the Claim Notice is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice delivered to the Indemnifying Party shall not relieve be considered Losses of the Indemnifying Indemnified Party for purposes of its obligations under Sections 8.2 and 8.3 of this Section 9 except to Agreement. Except as hereinafter provided, in the extent event that the Indemnifying Party is materially prejudiced notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Partydemand, provide the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such information and cooperation with respect to such claim as defense. If the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, so elects to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable to the Indemnified Party for any fees and legal expenses of counsel for subsequently incurred by the Indemnified Party. If any Indemnified Party incurred thereafter in connection with desires to participate in, but not control, any such claim except that, if such defense it may do so at its sole cost and expense. An Indemnified Party reasonably determines that counsel designated by shall not settle, compromise or discharge a claim or demand for which it has the right to claim indemnification from the Indemnifying Party has a conflict of interest due hereunder or admit to any liability with respect to such claim or demand without the conflicting interests prior written consent of the Indemnifying Party and (which may be withheld in the sole discretion of the Indemnifying Party). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which may be withheld in the sole discretion of the Indemnified Party) settle, compromise or discharge or offer to settle, compromise or discharge any such claim or demand on a basis which (x) does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect to the Third Party Claim or (y) imposes any obligation on the Indemnified Party or that either an Indemnified Party any Subsidiary or Affiliate thereof other than the payment to be made by the Indemnifying Party. If the Indemnifying Party has defenses elects not to defend the Indemnified Party, then the Indemnified Party shall have the right to defend the claim or demand by appropriate proceedings and shall have the sole power to direct and control such defense. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, then the amount of any such claim or demand, or, if the same be contested by the Indemnified Party, then that are not available portion of any such claim or demand as to which such defense is unsuccessful (and all reasonable costs of expenses pertaining to such defense) shall be the liability of the Indemnifying Party hereunder, subject to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (limitations set forth in addition to Section 8.6 hereof. In any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderevent, the Indemnifying Party shall not be entitled (at its own expense) have the right to appoint counsel to represent such Indemnified participate in the defense or settlement of any Third Party nor shall Claim for which the Indemnifying Party reimburse such may be liable hereunder. To the extent the Indemnifying Party shall direct, control or participate in the defense or settlement of any Third Party Claim, the Indemnified Party for any costs will provide the Indemnifying Party and its counsel access to all relevant business records and other documents, and shall use its best efforts to assist, and to cause the employees and counsel of counsel the Indemnified Party to assist, in defense of such Indemnified Partyclaim.
Appears in 2 contracts
Sources: Master Purchase and Sale Agreement (Atlantic Richfield Co /De), Master Purchase and Sale Agreement (Phillips Petroleum Co)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Section 9 Agreement shall be asserted and resolved as follows:
(an "a) Party claiming indemnification under this Agreement (the “Indemnified Party"), or compulsory process or request or other notice ”) shall promptly notify the Party from whom indemnification is sought (the “Indemnifying Party”) of any lossclaim by a third party against the Indemnified Party that could give rise to a right of indemnification under this agreement (“Third Party Claim”). The Indemnifying Party shall have the right to defend, at its sole cost and expense, such third party claim, damage or liability served upon an on its own behalf and on the behalf of the Indemnified Party, for by all appropriate proceedings, which such Indemnified proceedings shall be prosecuted diligently by the Indemnifying Party is to a final conclusion or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees settled at the discretion of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of Indemnifying Party may not enter into any compromise or settlement that involves equitable relief against the Indemnified Party to provide such notice to unless the Indemnified Party consents thereto, which consent shall not be unreasonably withheld, delayed or conditioned. If requested by the Indemnifying Party, the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party shall not relieve (excluding the internal costs and expenses of the Indemnified Party), cooperate with the Indemnifying Party of and its obligations under this Section 9 except to the extent counsel in contesting any third party claim that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect elects to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claimcontest, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals making of any related counterclaim against the Person asserting the third party claim or any cross-complaint against such claim; provided that, person.
(1b) if Notwithstanding the Indemnifying Party assumes Party’s election to assume the defense and appeals of such any third party claim, the Indemnified Party must consent shall have the right to employ separate counsel and to participate in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such third party claim, and shall bear the Indemnifying Party shall not be liable for any fees costs and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatseparate counsel, if such Indemnified Party reasonably determines that (i) the use of counsel designated chosen by the Indemnifying Party has a conflict of interest due to the conflicting interests of represent both the Indemnifying Party and the Indemnified Party would present such counsel with a conflict of interest, (ii) the actual or that either an Indemnified Party potential defendants in, or targets of, any such third party claim include both the Indemnifying Party has and the Indemnified Party, and the Indemnified Party shall have reasonably concluded that there may be a legal defense available to it which is different from or additional to the defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, which case the Indemnifying Party shall not be entitled have the right to appoint counsel to represent assume the defense of such third party claim on behalf of the Indemnified Party nor shall Party), (iii) the Indemnifying Party reimburse such shall not have employed counsel reasonably satisfactory to the Indemnified party to represent the Indemnified Party for any costs within a reasonable time after notice of the institution of such third party claim or (iv) the Indemnifying Party authorizes the Indemnified Party to employ separate counsel to such at the Indemnified Party’s cost and expense.
(c) If the Indemnifying Party fails to notify the Indemnified Party within ninety (90) days after receipt of notice in accordance with Section 4.04(a) hereof that the Indemnifying Party elects to defend the Indemnified Party pursuant to this Section 4.04, or if the Indemnifying Party elects to defend the Indemnified Party pursuant this Section 4.04 but fails to defend the third party claim diligently and promptly, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously defended by the Indemnified Party with respect to a third party claim for which the Indemnified Party is entitled to indemnification hereunder.
Appears in 2 contracts
Sources: Cardiolite License and Supply Agreement (Lantheus MI Intermediate, Inc.), Cardiolite License and Supply Agreement (Lantheus MI Intermediate, Inc.)
Indemnification Procedures. With (a) If any claim or demand is made against an Indemnified Party by a Person not a party hereto (or an Affiliate thereof) with respect to any claim made or threatened against matter, by any Person who is not a party entitled to this Agreement (or an Affiliate thereof) which may give rise to a claim for indemnification against an Indemnifying Party under this Section 9 Agreement (an "a “Third Party Claim”), then the Indemnified Party will promptly notify the Indemnifying Party in writing and in reasonable detail of the Third Party Claim, including the factual basis for the Third Party Claim and, to the extent known, the amount of the Third Party Claim; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will affect the Indemnifying Party’s obligations under this Article X, except to the extent the Indemnifying Party is actually prejudiced as a result thereof (except that the Indemnifying Party will not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party will deliver to the Indemnifying Party, promptly after the Indemnified Party"’s receipt thereof, copies of all non-ministerial notices and documents (including court papers) received or transmitted by the Indemnified Party relating to the Third Party Claim.
(b) The Indemnifying Party will have the right to participate in or to assume the defense of any Third Party Claim (in either case at the expense of the Indemnifying Party) with counsel of its choice. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume 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). Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, or compulsory process or request the Indemnifying Party will not be liable to the Indemnified Party for any legal or other notice expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party is conducting the defense of any loss, claim, damage or liability served upon an the Third Party Claim the Indemnified Party, for which such Indemnified Party is or at its sole cost and expense, may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees retain separate counsel and participate in the defense of the Collateral ManagerThird Party Claim, it being understood that the Collateral Manager Indemnifying Party will control such defense and any such counsel shall cause such Indemnified Party to):cooperate with the legal counsel of the Indemnifying Party.
(ic) give No Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without each Indemnified Party’s prior written notice to consent (which consent will not be unreasonably withheld, conditioned or delayed); provided that if the party required to indemnify Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party under this Section 9 (the "Indemnifying Party") will agree to any settlement, compromise or discharge of such claim within 10 days after Third Party Claim which the Indemnifying Party may recommend and which by its terms unconditionally releases the Indemnified Party and each member of such claim is made or threatened, which notice shall specify Indemnified Party’s Group completely from all liability in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claimconnection with such Third Party Claim; provided, however, that the failure Indemnified Party may refuse to agree to any such settlement, compromise or discharge that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or any member of such Indemnified Party’s Group. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party will not and will cause its Affiliates not to, admit any liability, consent to the entry of any judgment or agree to any settlement, compromise or discharge with respect to any Third Party Claim without the prior written consent of the Indemnifying Party.
(d) If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will keep the Indemnified Party reasonably informed of all material developments relating to or in connection with such Third Party Claim. If the Indemnifying Party chooses to defend a Third Party Claim, the Indemnified Party will cooperate in the defense thereof, which cooperation will include the provision to the Indemnifying Party of records and information which 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.
(e) Any claim on account of Damages for which indemnification is provided under this Agreement that does not involve a Third Party Claim will be asserted by reasonably prompt written notice given by the Indemnified Party to the Indemnifying Party from whom such indemnification is sought. The notice shall set forth the amount, if known, or, if not known, an estimate of the foreseeable maximum amount, of claimed Damages and a description of the basis for such claim. The delay by any Indemnified Party to provide such notice to so notify the Indemnifying Party shall will not relieve affect the Indemnifying Party of its Party’s obligations under this Section 9 Article X, except to the extent that the Indemnifying Party is materially actually prejudiced or otherwise forfeits rights or defenses by reason of such failure;as a result thereof.
(iif) at In connection with any matter for which a claim or demand is made against an Indemnified Party under this Agreement, the expense of the Indemnifying Party, Indemnified Party shall use commercially reasonable efforts to provide the Indemnifying Party with reasonable and necessary access to all documents, data, products, product exemplars and knowledgeable personnel of the Indemnified Party and its Affiliates relevant to any such matter, in each case at the Indemnified Party’s cost and expense. Without limiting the generality of the foregoing, the Indemnified Party shall, at its own cost and expense, use commercially reasonable efforts to, and shall use commercially reasonable efforts to cause its Affiliates to, provide employees to act as witnesses, prepare and execute statements, authorizations, orders, reports and other documents and information and cooperation with respect to provide such claim as other assistance, in each case that is reasonably requested by the Indemnifying Party may reasonably requirein connection with any matter for which a claim or demand is made against an Indemnified Party under this Agreement, includingincluding in anticipation of, without limitationor preparation for, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) existing or future litigation or other matters in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in or any of its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;Affiliates is involved.
(ivg) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions In the failure to make event of which would expose such Indemnified payment in full by an Indemnifying Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such any claim except that, if such (an “Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the otherClaim”), such Indemnifying Party shall pay will be subrogated to and will stand in the reasonable fees and disbursements place of one counsel (in addition such Indemnified Party as to any local counsel) separate from events or circumstances in respect of which such Indemnifying Party's own counsel for all Indemnified Parties in connection Party may have any right or claim relating to such Indemnified Claim against any claimant or plaintiff asserting such Indemnified Claim or against any other Person. Such Indemnified Party will cooperate with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best in a reasonable efforts manner in the light of the then-prevailing circumstances to defend such prosecuting any subrogated right or claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent . Each such Indemnified Party nor shall the and Indemnifying Party reimburse such Indemnified Party for any costs of counsel will duly execute upon request all instruments reasonably necessary to such Indemnified Partyevidence and perfect the above described subrogation rights.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Teco Energy Inc), Equity Purchase Agreement (Teco Energy Inc)
Indemnification Procedures. With respect to any claim made or threatened against a (a) Any indemnified party entitled to seeking indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other must give the indemnifying party prompt notice of any loss, claim, damage or liability served upon an Indemnified Party, the claim for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
Damages (i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify stating in reasonable detail the basis on which indemnification is being asserted and the aggregate amount of the Damages or an estimate thereof, in each case to the extent known or determinable at such time, (ii) specifying in reasonable detail the basis for such Damages included in the amount so stated, and the nature of the misrepresentation, breach or claim to which such item is related (to the extent known or determinable at such time), (iii) specifying the provision or provisions of this Agreement under which such Damages are asserted, and (iv) including copies of all relevant notices and documents (including court papers) served on or received by the amount (or an estimate indemnified party; provided, however, that no delay on the part of the amountindemnified party in notifying any indemnifying party shall relieve the indemnifying party from any liability or obligation hereunder unless (and then solely to the extent that) the indemnifying party thereby is materially prejudiced by such failure to give timely notice.
(b) If a Person is entitled to indemnification hereunder (an “Indemnified Party”) because of a claim asserted by any claimant (other than an indemnified person hereunder) (“Third Person”), the claimIndemnified Party shall give the indemnifying party (the “Indemnifying Party”) reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right for a period of any twenty (20) days from receipt of an indemnification claim from an Indemnified Party to provide such written notice to the Indemnifying Indemnified Party shall not relieve that it is assuming responsibility for such claim (in accordance with and subject to the terms and limitations of this Agreement), and using counsel reasonably satisfactory to the Indemnified Party, agrees to investigate, contest or settle the claim alleged by such Third Person (a “Third Person Claim”). Assuming the Indemnifying Party provides timely written notice of its obligations under this Section 9 except assumption of responsibility (in accordance with and subject to the extent that terms and limitations of this Agreement) for any Third Person Claim, the Indemnifying Indemnified Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless (i) separate representation is materially prejudiced necessary to avoid a conflict of interest, or otherwise forfeits rights or defenses by reason of such failure;
(ii) such Third Person Claim involves criminal allegations or seeks material non-monetary relief, in which case the Indemnified Party (and not the Indemnifying Party) shall have the right, using counsel reasonably satisfactory to the Indemnifying Party, to investigate, contest or settle the claim alleged by such Third Person, and such representation shall be at the expense of the Indemnifying Party, provide . Unless and until the Indemnifying Party such information so acknowledges its obligation to indemnify (in accordance with and cooperation subject to the terms and limitations of this Agreement), the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such claim as Third Person Claim within 20 days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available does not so acknowledge its obligation to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion indemnify and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of any such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claimThird Person Claim, the Indemnified Party must consent may defend against such claim using counsel of its choice, in writing such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim on such terms as the Indemnified Party may reasonably deem appropriate. Notwithstanding anything to the entry contrary set forth herein, (i) the Parties shall make available to each other all relevant books, records and information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereof; (ii) no Buyer Indemnified Party shall have the right to control any Third Person Claim with respect to Taxes if such Third Person Claim involves or includes Tax Returns or Taxes of Seller or any settlement, compromise, or entry of judgment in respect thereof its Affiliates (which consent shall not be unreasonably withheldother than the Acquired Companies); and (2iii) if to the extent the Indemnifying Party assumes discovers during the course of its defense of a Third Person Claim that the facts of such claimThird Person Claim are not subject to indemnification pursuant to this Article XI, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due obligated to provide indemnification to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Benson Hill, Inc.), Stock Purchase Agreement (Benson Hill, Inc.)
Indemnification Procedures. With In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to any claim made or threatened against a party entitled to indemnification under this Section 9 15, such person (an "Indemnified INDEMNIFIED Party")) shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the Indemnifying Party shall assume the defense thereof, or compulsory process or request or other notice including the employment of any loss, claim, damage or liability served upon an counsel reasonably satisfactory to such Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party and shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees assume the payment of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim all fees and the amount (or an estimate of the amount) of the claimexpenses; provided, however, provided that the failure of any Indemnified Party so to provide such notice to notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 hereunder except to the extent (and only to the extent that) that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason such failure to notify. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such failure;
(ii) counsel shall be at the expense of the Indemnifying Party, provide such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such information and cooperation with respect counsel or (ii) in the reasonable judgment of such Indemnified Party representation of both parties by the same counsel would be inappropriate due to such claim as actual or potential differing interests between them. It is understood that the Indemnifying Party may reasonably requireshall not, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in connection with any proceeding or related proceedings in the event suit is brought with respect same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate Indemnified Parties (including in the investigationcase of Holder, defense all of its officers, directors and settlement controlling persons) and that all such fees and expenses shall be reimbursed as they are incurred. In the case of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions separate firm for the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claimParties, the Indemnified Party must consent Parties shall designate such firm in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Party. The Indemnifying Party shall not be liable for any fees and expenses settlement of counsel for any Indemnified Party incurred thereafter in connection proceeding effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with such claim except thatconsent, or if such Indemnified Party reasonably determines that counsel designated by there be a final judgment for the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderplaintiff, the Indemnifying Party shall not be entitled indemnify and hold harmless such Indemnified Parties from and against any loss or liability (to appoint counsel to represent the extent stated above) by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party nor shall the Indemnifying Party reimburse from all liability arising out of such Indemnified Party for any costs of counsel to such Indemnified Partyproceeding.
Appears in 2 contracts
Sources: Securities Agreement (Markland Technologies Inc), Securities Agreement (Markland Technologies Inc)
Indemnification Procedures. With respect (a) In order for any Acquiror Company Indemnified Party or Company Indemnified Party (collectively, an “Indemnified Party”) to be entitled to any claim made or threatened against a party entitled to indemnification provided for under this Section 9 ARTICLE IX of this Agreement, the Indemnified Party shall deliver notice of its claim for indemnification to the party from whom indemnity pursuant to this Agreement is claimed (an "“Indemnifying Party”) with reasonable promptness after determining to make such claim. The failure by any Indemnified Party"), Party to notify the Indemnifying Party shall not relieve any relevant Indemnifying Party from any liability which he or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which it may have to such Indemnified Party is or may be entitled to indemnification under this Section 9Agreement, except to the extent that such claim for indemnification involves the claim of a third party against the Indemnified Party and the Indemnifying Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of have been actually prejudiced by such failure. If an indemnifying party does not notify the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
within thirty (i30) give written calendar days following receipt by it of such notice that such Indemnifying Party disputes its liability to the party required to indemnify the Indemnified Party under this Section 9 Agreement, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of such Indemnifying Party under this Agreement and such Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the "Indemnifying Party") amount of such claim within 10 days after (or such portion thereof) becomes finally determined. If an Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, such Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation or such other means as determined by the parties.
(b) If the claim is made or threatenedfor indemnification involves a third party claim (a “Third Party Claim”), which notice then the Indemnifying Party shall specify in reasonable detail have the nature right, at its sole cost, expense and ultimate liability regardless of the claim outcome, and through counsel of its choice (which counsel shall be reasonably satisfactory to the amount (Indemnified Party), to litigate, defend, settle or an estimate of the amount) of the claimotherwise attempt to resolve such Third Party Claim; provided, however, that if in the failure Indemnified Party’s reasonable judgment a conflict of any interest may exist between the Indemnified Party and the Indemnifying Party with respect to provide such notice Third Party Claim, then the Indemnified Party shall be entitled to select counsel of its own choosing, reasonably satisfactory to the Indemnifying Party, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such counsel.
(c) Notwithstanding the provisions of Section 9.4(b), if in the Indemnified Party’s reasonable judgment no such conflict exists, the Indemnified Party may, but will not relieve be obligated to, participate at its own expense in a defense of such Third Party Claim by counsel of its own choosing, but the Indemnifying Party of its obligations under this Section 9 except shall be entitled to control the extent that defense unless (i) in the case where only money damages are sought, the Indemnified Party has relieved the Indemnifying Party is materially prejudiced from liability with respect to the particular matter or otherwise forfeits rights or defenses by reason of such failure;
(ii) at in the expense case where equitable relief is sought, the Indemnified Party elects to participate in and jointly control the defense thereof.
(d) Whenever the Indemnifying Party controls the defense of a Third Party Claim, the Indemnifying Party may only settle or compromise the matter subject to indemnification without the consent of the Indemnified Party only if such settlement includes a complete release of all Indemnified Parties as to the matters in dispute and relates solely to money damages. The Indemnified Party will not unreasonably withhold or delay consent to any settlement or compromise that requires its consent.
(e) In the event the Indemnifying Party fails to timely defend, contest, or otherwise protect the Indemnified Party against any such claim or suit, the Indemnified Party may, but will not be obligated to, defend, contest, or otherwise protect against the same, and make any compromise or settlement thereof, and in such event, or in the case where the Indemnified Party jointly controls such claim or suit, the Indemnified Party shall be entitled to recover its costs thereof from the Indemnifying Party, provide the Indemnifying Party such information including attorneys’ fees, disbursements and cooperation with respect to all amounts paid as a result of such claim or suit or the compromise or settlement thereof.
(f) The Indemnified Party shall cooperate and provide such assistance as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available request in connection with the defense of the matter subject to the Indemnifying Party at such reasonable times as indemnification and in connection with recovering from any third parties amounts that the Indemnifying Party may request;pay or be required to pay by way of indemnification hereunder.
(iiig) The amount of Losses for which indemnification is provided hereunder shall be computed without regard to any insurance recovery related to such Losses.
(h) With respect to any Loss for which an Indemnified Party has made a claim for indemnification against an Indemnifying Party prior to the termination of the Survival Period in accordance with this Agreement, the event suit Survival Period shall be deemed continued until final resolution of such claim for indemnification.
(i) If and to the extent any party is brought required to provide indemnification hereunder, such indemnifying party shall not have any right of contribution or similar right, or any claim or cause of action against, any other party with respect to such claim, upon reasonable prior notice, afford obligation to provide indemnification and the Indemnifying Party obligation to provide indemnification shall be solely the right, which the Indemnifying Party may exercise in its sole discretion responsibility and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent obligation of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Share Exchange Agreement (BTHC XV, Inc.), Share Exchange Agreement (Birch Branch Inc)
Indemnification Procedures. With respect 11.3.1 A Party that intends to any claim made or threatened against a party entitled to indemnification under this Section 9 11 (an "the “Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ”) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give provide written notice to the party required indemnifying Party (the “Indemnifying Party”) of any Claim as soon as reasonably possible, and in any event no later than within thirty (30) days after the Indemnified Party has actual knowledge of such claim, demand or action (an “Indemnification Claim Notice”); provided, however, that, if the Indemnified Party fails to promptly notify the Indemnifying Party pursuant to the foregoing clause, the Indemnifying Party will only be relieved of its indemnification obligation to the extent materially prejudiced by such failure. Such Indemnification Claim Notice shall include a description of the Claim and the nature and amount of any Losses (to the extent that the nature and amount of such Losses are known at such time). Together with the Indemnification Claim Notice, the Indemnified Party shall furnish promptly to the Indemnifying Party copies of all notices and documents (including court papers) received by any Indemnified Party in connection with the Claim.
11.3.2 At its option, the Indemnifying Party may assume the defense and have exclusive control, at its own expense, of any Claim for which indemnity is being sought by giving written notice to the Indemnified Party within thirty (30) days after receipt of the notice of the Claim, provided that (i) it agrees to indemnify the Indemnified Party under this Section 9 (from and against all Losses the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature Indemnified Party may suffer arising out of the claim Claim; (ii) the Claim involves only money damages and does not seek an injunction or other equitable relief against the amount Indemnified Party; (iii) the Claim does not relate to any criminal or an estimate of the amounta regulatory enforcement proceeding; and (iv) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve conducts the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense defense of the Indemnifying Party, Claim diligently. The Indemnified Party will provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.reasonable
Appears in 2 contracts
Sources: License Agreement (Magenta Therapeutics, Inc.), License Agreement (Magenta Therapeutics, Inc.)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Section 9 Agreement shall be asserted and resolved as follows:
(a) A party claiming indemnification under this Agreement (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
reasonable promptness (i) give written notice to notify the party required to indemnify the Indemnified Party under this Section 9 from whom indemnification is sought (the "Indemnifying Party") of any third-party claim or claims asserted against the Indemnified Party ("Third-Party Claim") for which indemnification is sought and (ii) transmit to the Indemnifying Party a copy of all papers served with respect to such claim within 10 days after such claim is made or threatened, which (if any) and a written notice shall specify ("Claim Notice") containing a description in reasonable detail of the nature of the claim and the amount (or Third-Party Claim, an estimate of the amount) amount of damages attributable to the Third-Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim; provided, however, that ) and the failure basis of the Indemnified Party's request for indemnification under this Agreement.
(b) Within 15 days after receipt of any Indemnified Party to provide such notice to Claim Notice (the "Election Period"), the Indemnifying Party shall not relieve notify the Indemnified Party (i) whether the Indemnifying Party of disputes its obligations under this Section 9 except potential liability to the extent that Indemnified Party with respect to such Third-Party Claim and (ii) whether the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) desires, at the sole cost and expense of the Indemnifying Party, provide to defend the Indemnified Party against such Third-Party Claim.
(c) If the Indemnifying Party such information and cooperation with respect to such claim as notifies the Indemnified Party within the Election Period that the Indemnifying Party may elects to assume the defense of the Third-Party Claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such Third-Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 8.3. The Indemnifying Party shall have full control of such defense and proceedings. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party, to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably requiredeem necessary or appropriate to protect its interests. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third-Party Claim that the Indemnifying Party elects to contest, including, without limitation, the making appropriate personnel available to of any related counterclaim against the Person asserting the Third-Party Claim or any cross-complaint against any Person, at the Indemnifying Party's sole cost and expense. Except as otherwise provided herein, the Indemnified Party may participate in, but not control, any defense or settlement of any Third-Party Claim controlled by the Indemnifying Party pursuant to this Section 8.3 and shall bear its own costs and expenses with respect to such participation.
(d) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to defend the Indemnified Party pursuant to the preceding paragraph, or if the Indemnifying Party elects to defend the Indemnified Party but fails to prosecute or settle the Third-Party Claim as herein provided, or if the Indemnified Party reasonably objects to such election on the grounds that counsel for such Indemnifying Party cannot represent both the Indemnified Party and the Indemnifying Parties because such representation would be reasonably likely to result in a conflict of interest, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. In such reasonable times as a situation, the Indemnified Party shall have full control of such defense and proceedings and the Indemnifying Party may request;
(iii) in participate in, but not control, any defense or settlement controlled by the event suit is brought Indemnified Party pursuant to this Section 8.3, and the Indemnifying Party shall bear its own costs and expenses with respect to such claimparticipation.
(e) The Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) the terms of such compromise or settlement require no more than the payment of money (i.e., upon reasonable prior noticesuch compromise or settlement does not require the Indemnified Party to admit any wrongdoing or take or refrain from taking any action), afford to (ii) the full amount of such monetary compromise or settlement will be paid by the Indemnifying Party, and (iii) the Indemnified Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement receives as part of such claim;
(iv) subject settlement a legal, binding and enforceable unconditional satisfaction and/or release, in form and substance reasonably satisfactory to clause (v) belowit, neither incur providing that such Third-Party Claim and any material expense to defend against nor release or settle any such claim or make any admission claimed liability of the Indemnified Party with respect thereto (other than routine is being fully satisfied by reason of such compromise or incontestable admissions or factual admissions settlement and that the failure to make of which would expose such Indemnified Party is being released from any and all obligations or liabilities it may have with respect thereto. The Indemnified Party shall not settle or admit liability to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case Third-Party Claim without the prior written consent of the Indemnifying Party unless (x) the Indemnifying Party has disputed its potential liability to the Indemnified Party; and, and such dispute either has not been resolved or has been resolved in favor of the Indemnifying Party, or (y) the Indemnifying Party has failed to respond to the Indemnified Party's Claim Notice.
(vf) upon reasonable prior noticeIn the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third-Party Claim, afford the Indemnified Party shall transmit to the Indemnifying Party a written notice (the right"Indemnity Notice") describing in reasonable detail the nature of the claim, in an estimate of the amount of damages attributable to such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, claim to assume the defense extent feasible (which estimate shall not be conclusive of the final amount of such claim, including, without limitation, ) and the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals basis of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel request for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyunder this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Villageedocs Inc), Stock Purchase Agreement (Hadzi-Pavlovic Vojin and Gloria)
Indemnification Procedures. With respect to If any action or claim made shall be brought against any Distributor Indemnified Party or threatened against a party entitled to indemnification under this Section 9 Trust Indemnified Party (any such party, an "Indemnified PartyINDEMNIFIED PARTY" and collectively, the "INDEMNIFIED PARTIES"), or compulsory process or request or other notice in respect of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or indemnity may be entitled to indemnification under this Section 9sought against the other party hereto (the "INDEMNIFYING PARTY"), such Indemnified Party shall (or with respect to Indemnified Parties that are directorspromptly notify the Indemnifying Party in writing, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate Indemnifying Party shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses; but the amount) of the claim; provided, however, that the failure of any Indemnified Party omission so to provide such notice to notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 it from any liability which it may have to any indemnified party except to the extent that the such Indemnifying Party is has been materially prejudiced or otherwise forfeits rights or defenses by reason such failure. Any Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such failure;
(ii) counsel shall be at the expense of the Indemnifying Party, provide such Indemnified Party unless (i) the Indemnifying Party has agreed in writing to pay such information fees and cooperation with respect to such claim as expenses, (ii) the Indemnifying Party has failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any impleaded party) included such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised by counsel that there may reasonably require, including, without limitation, making appropriate personnel be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party at or which may also result in a conflict of interest (in which case if such reasonable times as Indemnified Party notifies the Indemnifying Party, the Indemnifying Party may request;
(iii) in shall not have the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, right to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals action on behalf of such claim; provided thatIndemnified Party, (1) if the Indemnifying Party assumes the defense and appeals of such claimit being understood, the Indemnified Party must consent in writing to the entry of any settlementhowever, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, that the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatnot, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for all such Indemnified Parties. The Indemnifying Party shall use its best reasonable efforts in not, without the light written consent of the then-prevailing circumstances Indemnified Party, effect the settlement or compromise of, or consent to defend the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Party is an actual or potential party to such action or claim; ) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnified Party from all liability arising out of such action or claim and (4ii) if 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 waives its right to indemnification hereunder, the Party. The Indemnifying Party shall not be entitled to appoint counsel to represent liable for any settlement of any such Indemnified Party nor action effected WITHOUT ITS WRITTEN CONSENT, BUT IF SUCH ACTION IS SETTLED WITH THE WRITTEN CONSENT OF THE INDEMNIFYING PARTY, THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS DISTRIBUTION CO. or if there shall be a final judgment for the plaintiff in any such action and the time for filing all appeals has expired, the Indemnifying Party reimburse such agrees to indemnify and hold harmless any Indemnified Party for from and against any costs loss or liability by reason of counsel such settlement or judgment. The obligations of the Indemnifying Party under this SECTION 8 shall be in addition to such Indemnified Partyany liability that the Indemnifying Party may otherwise have.
Appears in 2 contracts
Sources: Distribution Agreement (Winton Diversified Opportunities Fund), Distribution Agreement (Winton Diversified Opportunities Fund)
Indemnification Procedures. With If any action shall be brought against any Buyer Indemnitee or Seller Indemnitee (hereinafter, the “Indemnified Party”) in respect of which indemnity may be sought pursuant to this Agreement, such Indemnified Party shall promptly notify the indemnitor hereunder (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Indemnified Party. Any Indemnified Party shall have the right to employ separate counsel (or, if more than one Indemnified Party is the subject of any action in respect of which indemnity is sought, one counsel for the Indemnified Parties) in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party except to the extent that (1) the employment thereof has been specifically authorized by Indemnifying Party in writing, (2) the Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or (3) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of Indemnifying Party, on the one hand, and the position of such Indemnified Party, on the other hand, in which case Indemnifying Party shall be responsible for the reasonable fees and expenses of no more than one such separate counsel for all Indemnified Parties seeking indemnity. No Indemnifying Party will be liable to any claim made or threatened against a party entitled to indemnification Indemnified Party under this Section 9 Agreement (an "y) for any settlement by a Indemnified Party effected without the Indemnifying Party")’s prior written consent, which shall not be unreasonably withheld or compulsory process delayed; or request or other notice of any (z) to the extent, but only to the extent, that a loss, claim, damage or liability served upon an is attributable to any Indemnified Party’s breach of its representations, for which warranties or covenants under this Agreement or any conduct by such Indemnified Party is which constitutes fraud, gross negligence, willful misconduct or may be entitled to malfeasance. The indemnification under required by this Section 9, such Indemnified Party 7 shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees be made by periodic payments of the Collateral Manager, amount thereof during the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature course of the claim investigation or defense, as and the amount (when bills are received or an estimate are incurred. The indemnity agreements contained herein shall be in addition to any cause of the amount) of the claim; provided, however, that the failure action or similar right of any Indemnified Party to provide such notice to the against Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information others and cooperation with respect to such claim as the any Liabilities Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) be subject to clause (v) below, neither incur any material expense pursuant to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyapplicable law.
Appears in 2 contracts
Sources: Op Unit Purchase Agreement (Pillarstone Capital Reit), Op Unit Purchase Agreement (Whitestone REIT)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Section 9 Agreement shall be asserted and resolved as follows:
(a) A party claiming indemnification under this Agreement (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
reasonable promptness (i) give written notice to notify the party required to indemnify the Indemnified Party under this Section 9 from whom indemnification is sought (the "Indemnifying Party") of any third-party claim or claims asserted against the Indemnified Party ("Third Party Claim") for which indemnification is sought and (ii) transmit to the Indemnifying Party a copy of all papers served with respect to such claim within 10 (if any) and a written notice ("Claim Notice") containing a description in reasonable detail of the nature of the Third Party Claim, an estimate of the amount of damages attributable to the Third Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis of the Indemnified Party's request for indemnification under this Agreement. Within 15 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party disputes its potential liability to the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party does not dispute its potential liability to the Indemnified Party within the Election Period, the Indemnified Party shall give the Indemnifying Party an opportunity to control negotiations toward resolution of such claim is made without the necessity of litigation, and if litigation ensues, to defend the same with counsel reasonably acceptable to the Indemnified Party, at the Indemnifying Party's expense, and the Indemnified Party shall extend reasonable cooperation in connection with such defense. The Indemnified Party shall be entitled to participate in, but not to control, the defense of any Third Party Claim resulting in litigation, at its own cost and expense; provided, however, that if the parties to any suit or threatenedproceeding shall include the Indemnifying Party as well as the Indemnified Party and the Indemnified Party shall have been advised by counsel that one or more legal defenses may be available to it that may not be available to the Indemnifying Party, then the Indemnified Party shall be entitled to participate in the defense of such suit or proceeding along with the Indemnifying Party, but the Indemnified Party shall be obligated to bear the fees and expenses of counsel of the Indemnified Party, which shall be selected by the Indemnified Party in its complete and sole discretion. If the Indemnifying Party does not dispute its potential liability to the Indemnified Party within the Election Period and the Indemnified Party fails to assume control of the negotiations prior to litigation or to defend such action within a reasonable time, the Indemnifying Party shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and the Indemnifying Party shall be liable to the Indemnified Party for its expenses reasonably incurred or amounts paid in connection therewith. If the Indemnifying Party disputes its potential liability to the Indemnified Party within the Election Period, then the Indemnified Party shall be entitled to assume control of such negotiations or defense of action and the liability for the expense thereof, as well as any liability with respect to such Third Party Claim, shall be determined as provided in Section 7.5 below. Neither the Indemnifying Party nor the Indemnified Party shall settle, compromise, or make any other disposition of any Third Party Claim which would or might result in any liability to the Indemnified Party or the Indemnifying Party under this Article VII without the written consent of such other party.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim, the Indemnified Party shall transmit to the Indemnifying Party a written notice shall specify (the "Indemnity Notice") describing in reasonable detail the nature of the claim and the amount (or claim, an estimate of the amount) amount of damages attributable to such claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim; provided, however, that ) and the failure basis of any the Indemnified Party to provide such notice to Party's request for indemnification under this Agreement. If the Indemnifying Party shall does not relieve notify the Indemnifying Indemnified Party within 15 days from its receipt of its obligations under this Section 9 except to the extent Indemnity Notice that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of disputes such claim, the claim specified by the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent Indemnity Notice shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has deemed a conflict of interest due to the conflicting interests liability of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Merger Agreement (Clearworks Net Inc), Merger Agreement (Billserv Com Inc)
Indemnification Procedures. With In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to any claim made either Section 6(a) or threatened against a party entitled to indemnification under this Section 9 6(b), such person (an "the “Indemnified Party")”) shall promptly notify the person from whom such indemnity may be sought (the “Indemnifying Party”) in writing (provided that failure to so notify an indemnifying party shall not relieve such Indemnifying Party from any liability under Section 6(a) or 6(b) to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement) and the Indemnifying Party, or compulsory process or upon request or other notice of any loss, claim, damage or liability served upon an the Indemnified Party, for which such shall retain counsel reasonably satisfactory to the Indemnified Party is or to represent the Indemnified Party and any others the Indemnifying Party may be entitled designate in such proceeding and shall pay the fees and disbursements of such counsel related to indemnification under this Section 9such proceeding. In any such proceeding, such any Indemnified Party shall (or with respect have the right to Indemnified Parties that are directorsretain its own counsel, officers, stockholders, members, partners, agents or employees but the fees and expenses of such counsel shall be at the Collateral Manager, the Collateral Manager shall cause expense of such Indemnified Party to):
Party, unless (i) give written notice to the party required to indemnify Indemnifying Party and the Indemnified Party under this Section 9 (shall have mutually agreed in writing to the "Indemnifying Party") retention of such claim within 10 days after counsel or (ii) the named parties to any such claim proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or different legal defenses available to them. It is made or threatenedunderstood that the Indemnifying Party shall not, which notice shall specify in reasonable detail the nature respect of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure legal expenses of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced in connection with any proceeding or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) related proceedings in the event suit is brought with respect same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such claimIndemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representative, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigationcase of parties indemnified pursuant to Section 6(a) above, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions by the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofCompany, in each the case without the prior written consent of the Indemnifying Party; and
(vparties indemnified pursuant to Section 6(b) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the above. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse the Indemnified Party for fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatas contemplated by the first and second sentences of this paragraph, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict agrees that it shall be liable for any settlement of interest due to the conflicting interests any proceeding effected without its written consent if (i) such settlement is entered into more than 90 days after receipt by such Indemnifying Party of the Indemnifying Party aforesaid request and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, (ii) such Indemnifying Party shall pay not have reimbursed the reasonable fees and disbursements Indemnified Party in accordance with such request prior to the date of one counsel (in addition to any local counsel) separate from such settlement. No Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in Party shall, without the same jurisdiction arising out prior written consent of the same general allegations Indemnified Party, effect any settlement of any pending or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts threatened proceeding in the light respect of the then-prevailing circumstances to defend such claim; and (4) if which any Indemnified Party waives its right to indemnification hereunderis or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, the Indemnifying Party shall not be entitled to appoint counsel to represent unless such settlement includes an unconditional release of such Indemnified Party nor shall from all liability on claims that are the Indemnifying Party reimburse subject matter of such proceeding and does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party for any costs of counsel to such Indemnified PartyPerson.
Appears in 2 contracts
Sources: Underwriting Agreement (MGM Resorts International), Underwriting Agreement (MGM Resorts International)
Indemnification Procedures. (a) Each Indemnified Party shall, promptly after the receipt of notice of a written threat or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought from an Indemnifying Party pursuant to this Section 8, notify the Indemnifying Party in writing thereof, stating, to the extent known, the name of the Person threatening or commencing such action and a brief statement of the basis for any claim of indemnity for Losses.
(b) The failure of any Indemnified Party to so notify an Indemnifying Party of any such action shall not relieve the Indemnifying Party from any liability except to the extent that the rights of such Indemnifying Party are prejudiced by such failure, it being understood that the Indemnifying Party is per se prejudiced if delivery of a notice specifying in reasonable detail the basis for an indemnification claim under this Section 8 is delivered after the time period set forth in Section 8.5(d).
(c) With respect to any claim made or threatened against a party action notified by an Indemnified Party to an Indemnifying Party in accordance with this Section 8, the Indemnifying Party will be entitled to indemnification participate therein, and, to the extent it may wish, to assume the defense thereof with counsel reasonably satisfactory to such Indemnified Party, and after written notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party will not be liable to such Indemnified Party under this Section 9 (an "Indemnified Party"), or compulsory process or request 8 for any legal or other notice expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation.
(d) Upon making any loss, claim, damage or liability served upon payment to an Indemnified PartyParty for any indemnification claim for Losses pursuant to this Section 8, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any other parties with respect to the subject matter underlying such indemnification claim.
(e) The Indemnifying Parties shall not settle any action for which such an Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case hereunder without the prior written consent of the Indemnifying such Indemnified Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall will not be unreasonably withheld); (2) if withheld or delayed, provided that the Indemnifying Party assumes consent of the defense of such claim, the Indemnifying Indemnified Party shall not be liable required so long as the settlement (i) only provides for any fees and expenses the payment of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated monetary damages by the Indemnifying Party has Parties, (ii) does not restrict the conduct or business activities of any of the Indemnified Parties and (iii) provides a conflict of interest due complete and full release from all liability to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Amc Entertainment Inc), Stock Purchase Agreement (Marquee Holdings Inc.)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Section 9 Agreement shall be asserted and resolved as follows:
(a) A party claiming indemnification under this Primary Agreement (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
reasonable promptness (i) give written notice to notify the party required to indemnify the Indemnified Party under this Section 9 from whom indemnification is sought (the "Indemnifying Party") of such any third-party claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail claims asserted against the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice ("Third Party Claim") for which indemnification is sought and (ii) 38 39 transmit to the Indemnifying Party shall not relieve the Indemnifying Party a copy of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation all papers served with respect to such claim as (if any) and a written notice ("Claim Notice") containing a description in reasonable detail of the Indemnifying nature of the Third Party may reasonably requireClaim, including, without limitation, making appropriate personnel available an estimate of the amount of damages attributable to the Indemnifying Third Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford Claim to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof extent feasible (which consent estimate shall not be unreasonably withheld); (2) if conclusive of the Indemnifying Party assumes the defense final amount of such claimClaim) and the basis of the Indemnified Party's request for indemnification under this Agreement. Within 15 days after receipt of any Claim Notice ("the Election Period"), the Indemnifying Party shall not be liable for any fees and expenses of counsel for any notify the Indemnified Party incurred thereafter whether the Indemnifying Party disputes its potential liability to the Indemnified Party with respect to such Third Party Claim and, if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to such Third Party Claim, whether the Indemnifying Party elects to defend the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party does not dispute its potential liability to the Indemnified Party within the Election Period and notifies the Indemnified Party that it elects to defend such Third Party Claim, the Indemnifying Party shall control negotiations toward resolution of such claim without necessity of litigation, and if litigation ensues, to defend the same with counsel reasonably acceptable to both parties, at the Indemnifying Party's expense, and the Indemnified Party shall extend reasonable cooperation in connection with such claim except thatdefense. The Indemnified Party shall be entitled to elect to participate in, but not to control, the defense of any Third Party Claim resulting in litigation, at its own cost and expense. However, if such Indemnified Party reasonably determines that counsel designated by the parties to any suit or proceeding shall include the Indemnifying Party has a conflict of interest due to as well as the conflicting interests of Indemnified Party, then the Indemnifying Party and the Indemnified Party shall use their best efforts to resolve the real or that either an Indemnified Party 39 40 potential conflicts inherent in the suit or proceeding. If resolution cannot be reached on this issue, then resort to Arbitration consistent with Section 7.5 of this Primary Agreement shall occur. If the Indemnifying Party has defenses that are does not available dispute its potential liability to the other, such Indemnified Party within the Election Period and the Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition fails to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out assume control of the same general allegations or circumstances; (3) negotiations prior to entering into any final settlement litigation or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any action within a reasonable time, the Indemnified Party waives its right shall be entitled, but not obligated, to indemnification hereunderassume control of such negotiations or defense of such action, and the Indemnifying Party shall be liable to the Indemnified Party for its expenses reasonably incurred or amounts paid in connection therewith. If the Indemnifying Party disputes its potential liability to the Indemnified Party within the Election Period or does not elect to defend such Third Party Claim, then the Indemnified Party shall be entitled to appoint counsel assume control of such negotiations or defense of action and the liability for the expense thereof, as well as any liability with respect to represent such Indemnified Third Party nor Claim, shall be determined as provided in Section 7.5 below. If the Indemnifying Party reimburse such fails to notify the Indemnified Party for any costs within the Election Period that the Indemnifying Party elects to defend the Indemnified Party pursuant to the preceding paragraph, or if the Indemnifying Party elects to defend the Indemnified Party but fails to defend or settle the Third Party Claim as herein provided, then the Indemnified Party shall have the right to defend, at the sole cost and expense of counsel the Indemnifying Party (if the Indemnified Party is entitled to such indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party.Party to a final conclusion or settled. The Indemnified Party shall have full control
Appears in 1 contract
Sources: Primary Stock Purchase Agreement (Watson General Corp)
Indemnification Procedures. With respect to (i) If a claim shall be made by any claim made or threatened against taxing authority that, if successful, would result in the indemnification of a party entitled to indemnification under this Section 9 Agreement (an referred to herein as the "Tax Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such the Tax Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to promptly notify the party required to indemnify the Indemnified Party obligated under this Section 9 Agreement to so indemnify (referred to herein as the "Tax Indemnifying Party") in writing of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;fact.
(ii) at the expense of the Indemnifying Party, provide the Indemnifying The Tax Indemnified Party shall take such information and cooperation action in connection with respect to contesting such claim as the Tax Indemnifying Party may shall reasonably requirerequest in writing from time to time, includingincluding the selection of counsel and experts and the execution of powers of attorney, without limitation, making appropriate personnel available to provided that (A) within 30 days after the Indemnifying Party at notice described in Section 6.1(f)(i) has been delivered (or such reasonable times as -27- earlier date that any payment of Taxes is due by the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Tax Indemnified Party to unindemnified liability) nor permit a default or consent to but in no event sooner than five days after the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Tax Indemnifying Party's sole discretion receipt of such notice), the Tax Indemnifying Party requests that such claim be contested, (B) the Tax Indemnifying Party shall have agreed to pay to the Tax Indemnified Party all costs and at such Indemnifying Party's sole expense, to assume expenses that the defense of Tax Indemnified Party incurs in connection with contesting such claim, including, without limitation, reasonable attorneys' and accountants' fees and disbursements, and (C) if the right Tax Indemnified Party is requested by the Tax Indemnifying Party to designate counsel pay the Tax claimed and ▇▇▇ for a refund, the Tax Indemnifying Party shall have advanced to control all negotiationsthe Tax Indemnified Party, litigationon an interest-free basis, arbitration, settlements, compromises and appeals the amount of such claim; provided that. The Tax Indemnified Party shall not make any payment of such claim for at least 30 days (or such shorter period as may be required by applicable law) after the giving of the notice required by Section 6.1(f)(i), (1) if shall give to the Tax Indemnifying Party assumes the defense and appeals of any information reasonably requested relating to such claim, and otherwise shall cooperate with the Tax Indemnifying Party in good faith in order to contest effectively any such claim.
(iii) Subject to the provisions of Section 6.1(f)(ii), the Tax Indemnified Party must consent shall enter into a settlement of such contest with the applicable taxing authority or prosecute such contest to a determination in writing a court or other tribunal of initial or appellate jurisdiction, all as the Tax Indemnifying Party may request.
(iv) If, after actual receipt by the Tax Indemnified Party of an amount advanced by the Tax Indemnifying Party pursuant to Section 6.1(f)(ii)(C), the extent of the liability of the Tax Indemnified Party with respect to the entry claim shall be established by the final judgment or decree of a court or other tribunal or a final and binding settlement with an administrative agency having jurisdiction thereof, the Tax Indemnified Party shall promptly repay to the Tax Indemnifying Party the amount advanced to the extent of any settlementrefund received by the Tax Indemnified Party with respect to the claim together with any interest received thereon from the applicable taxing authority and any recovery of legal fees from such taxing authority, compromisenet of any Taxes as are required to be paid by the Tax Indemnified Party with respect to such refund, interest or entry legal fees (calculated at the maximum applicable statutory rate of judgment in respect thereof (which consent shall not be unreasonably withheldTax without regard to any other Tax Items); (2) if . Notwithstanding the Indemnifying Party assumes the defense of such claimforegoing, the Indemnifying Tax Indemnified Party shall not be liable for required to make any fees and expenses of counsel for any payment hereunder before such time as the Tax Indemnifying Party shall have made all payments or indemnities then due with respect to the Tax Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by pursuant to this Agreement.
(v) Promptly after a final determination the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Tax Indemnifying Party shall pay to the reasonable fees and disbursements Tax Indemnified Party the amount of one counsel (in addition any Tax Losses to any local counsel) separate from such Indemnifying Party's own counsel for all which the Tax Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out Party may become entitled by reason of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light provisions of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partythis Section 6.1.
Appears in 1 contract
Sources: Purchase Agreement (Armco Inc)
Indemnification Procedures. With respect to any claim made or threatened against (a) If a party Party entitled to indemnification under this Section 9 8 (an "“Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon ”) wishes to assert an Indemnified Party, for which indemnification claim against the Party subject to such Indemnified Party is or may be entitled to indemnification obligation under this Section 98 (the “Indemnifying Party”), such then the Indemnified Party shall will deliver to the Indemnifying Party, as soon as reasonably practicable, a written notice (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):a “Claim Notice”) setting forth:
(i) give written notice to the party required to indemnify specific subsection of Section 8.2 or 8.3, as applicable, upon which the Indemnified Party under this Section 9 (is basing its claim and, if applicable, the "representation and warranty or covenant alleged to have been breached by the Indemnifying Party";
(ii) of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature a reasonably detailed description of the facts and circumstances giving rise to the claim as are then reasonably available; and
(iii) a reasonably detailed description of, and the amount (or an a good faith estimate of the amount) of total amount of, the Damages actually incurred or expected to be incurred by the Indemnified Party with respect to such claim, if known and quantifiable; provided, however, that (A) the failure of any Indemnified Party to provide such notice deliver a Claim Notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 from any liability that it may have to the Indemnified Party, except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the related Matter; and (B) the Indemnified Party will not be permitted to deliver a Claim Notice (and will not be entitled to indemnification pursuant to this Section 8) with respect to breaches of a representation and warranty unless such Claim Notice is delivered before the Expiration Date or Fundamental Representations Expiration Date, applicable to such representation and warranty.
(b) If the Indemnified Party receives notice or otherwise obtains knowledge of any Matter brought by a third party that may reasonably be expected to give rise to an indemnification claim against the Indemnifying Party, then the Indemnified Party will deliver to the Indemnifying Party a written notice describing such Matter in reasonable detail as soon as reasonably practicable; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to the Indemnified Party, except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the related Matter. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, at its election and at its sole expense, to assume the defense of any such Matter with its own counsel, reasonably acceptable to the Indemnified Party; provided, that the Indemnifying Party shall not have the right to assume control of such defense, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief against the Indemnified Party (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages or would not have an adverse effect on the Indemnified Party), (B) involves criminal allegations against the Indemnified Party, (C) is one in which the Indemnifying Party is materially prejudiced also a party and there may be legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, or (D) is reasonably likely to result in greater liability to the Indemnified Party than the Indemnifying Party, taking into account the limitations on indemnification herein. This Section 8.5(b) shall not apply to any Matters with respect to Taxes, which shall be exclusively governed by Section 4.15(b).
(c) If the Indemnifying Party elects to assume the defense of any Matter under subsection (b) of this Section 8.5, then:
(i) the Indemnifying Party will not be required to pay or otherwise forfeits rights indemnify the Indemnified Party against any attorneys’ fees or defenses other expenses incurred on behalf of the Indemnified Party in connection with any such Matter following the Indemnifying Party’s election to assume the defense of any such Matter other than the reasonable costs of investigation and of assistance as contemplated by reason this Section 8.5; provided, however, that if, in the opinion of outside counsel to the Indemnified Party, it is advisable for the Indemnified Party to be represented by separate counsel due to actual or potential conflicts of interest, the Indemnified Party shall have the right to employ counsel to represent it and in that event the reasonable fees and expenses of such failureseparate counsel shall be paid by the Indemnifying Party;
(ii) at the expense Indemnified Party and the Indemnifying Party will each make available to the other all books, records and other documents and materials that are under the control of such Party, its Affiliates, advisors and representatives that may be reasonably considered necessary or desirable for the defense of any such Matter (other than any Dispute between Purchaser and Seller or their respective Affiliates arising out of the transactions contemplated hereby or by the Ancillary Agreements);
(iii) the Indemnified Party and the Indemnifying Party will execute such documents and take such other actions as may be reasonably requested by the other for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, any such Matter;
(iv) the Indemnified Party will otherwise cooperate as reasonably requested by the Indemnifying Party in the defense of any such Matter; provided, however, that such actions and cooperation by the Indemnified Party under clauses “(ii)” through “(iv)” will not unduly disrupt the operations of the Indemnified Party’s business or cause the Indemnified Party to waive any statutory or common law privileges (provided, that, to the extent Purchaser or Seller (as the case may be) withholds information due to a potential waiver of such privilege, such Party shall notify the other Party of the same and shall use commercially reasonable efforts to find a way to allow disclosure of such information, including entering into joint defense agreements or other arrangements, as appropriate and only to the extent such descriptions, disclosures, agreements and arrangements would not reasonably be expected to result in a waiver of such privilege), breach any confidentiality obligations owed to third parties (provided, that Purchaser or Seller (as the case may be) uses reasonable best efforts to obtain waivers thereof) or otherwise cause any confidential information of the Indemnified Party to become public;
(v) the Indemnified Party will not admit any liability with respect to any such Matter without the Indemnifying Party’s prior written consent (such consent not to be unreasonably withheld, provide conditioned or delayed); and
(vi) the Indemnifying Party will have the right to settle, adjust or compromise any such information and cooperation with respect to Matter, on such claim terms as the Indemnifying Party may reasonably requireconsider appropriate, includingwith the consent of the Indemnified Party (which will not be unreasonably withheld, without limitationconditioned or delayed); provided, making appropriate personnel available however, that the consent of the Indemnified Party shall not be required with respect to any such settlement, adjustment or compromise if the Indemnifying Party at agrees in writing to pay or cause to be paid any amounts payable pursuant to such reasonable times settlement, adjustment or compromise; such settlement, adjustment or compromise contemplates relief only through monetary damages; such settlement, adjustment or compromise includes no admission of liability by or other obligation on the part of the Indemnified Party; and such settlement, adjustment or compromise includes as an unconditional term thereof the giving by the third party claimant to the Indemnified Party of a release from all liability in respect thereof; and
(vii) If the Indemnifying Party may request;
elects not to or is otherwise not entitled to (iiipursuant to this Section 8.5) assume the defense of any Matter, then (i) the Indemnified Party will proceed diligently to defend any such Matter with the assistance of counsel, (ii) the Indemnifying Party will be afforded the opportunity to participate in such defense, at the event suit is brought Indemnifying Party’s sole cost and expense and (ii) the Indemnified Party shall not settle, adjust or compromise any such Matter, or admit any liability with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofMatter, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall will not be unreasonably withheld, conditioned or delayed); .
(2viii) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party This Section 8.5(c) shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition apply to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection Matters with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior respect to entering into any final settlement or compromiseTaxes, such Indemnifying Party which shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyexclusively governed by Section 4.15(b).
Appears in 1 contract
Sources: Asset Purchase Agreement (Adamas Pharmaceuticals Inc)
Indemnification Procedures. With respect to any claim made or threatened against a Each party entitled to indemnification under this Section 9 (an the "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim within 10 days after such claim is made or threatenedlitigation, which notice shall specify in reasonable detail be approved by the nature of the claim and the amount Indemnified Party (or an estimate of the amount) of the claim; provided, however, that the whose approval shall not unreasonably be withheld). The failure of any Indemnified Party to provide such give notice to the Indemnifying Party as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 9 except Agreement only to the extent that such failure to give notice shall materially prejudice the Indemnifying Party is materially prejudiced in the defense of any such claim or otherwise forfeits rights any such litigation. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that attributes any liability to the Indemnified Party, unless the settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. If any such Indemnified Party shall have been advised by counsel chosen by it that there may be one or more legal defenses by reason of available to such failure;
(ii) at the expense of Indemnified Party that are different from or additional to those available to the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as shall not have the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, right to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals action on behalf of such claim; provided that, (1) if Indemnified Party and will reimburse such Indemnified Party and any person controlling such Indemnified Party for the Indemnifying Party assumes the defense reasonable fees and appeals expenses of such claim, any counsel retained by the Indemnified Party must consent in writing to the entry of any settlementParty, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, it being understood that the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatnot, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best be liable for the reasonable efforts in the light fees and expenses of the then-prevailing circumstances to defend such claim; and (4) if any more than one separate firm of attorneys for each Indemnified Party waives its right or controlling person (and all other Indemnified Parties and controlling persons which may be represented without conflict by one counsel), which firm shall be designated in writing by the Indemnified Party (or Indemnified Parties, if more than one Indemnified Party is to indemnification hereunder, be represented by such counsel) to the Indemnifying Party. The Indemnifying Party shall not be entitled subject to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party any liability for any costs of counsel to such Indemnified Partysettlement made without its consent, which shall not be unreasonably withheld.
Appears in 1 contract
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Section 9 (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may Agreement shall be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):asserted and resolved as follows:
(i) give written notice to An Indemnified Party shall promptly (i) notify in writing the Indemnifying Party of any third-party required to indemnify claim or claims ("THIRD PARTY CLAIM") asserted against the Indemnified Party which could give rise to a right of indemnification under this Section 9 Agreement and (ii) transmit to the Indemnifying Party a written notice ("Indemnifying PartyCLAIM NOTICE") of such claim within 10 days after such claim is made or threatened, which notice shall specify describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim and the amount (or if any), an estimate of the amount) amount of damages attributable to the Third Party Claim, if reasonably possible, and the basis of the claim; provided, however, that the failure Indemnified Party's request for indemnification under this Agreement.
(ii) Within forty-five days (45) days after receipt of any Indemnified Party to provide such notice to Claim Notice (the "ELECTION PERIOD"), the Indemnifying Party shall not relieve notify the Indemnified Party (i) whether the Indemnifying Party of disputes its obligations potential liability to the Indemnified Party under this Section 9 except 7.5 with respect to the extent that such Third Party Claim and (ii) whether the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) desires, at the sole cost and expense of the Indemnifying Party, provide to defend the Indemnifying Indemnified Party against such information and cooperation with respect to such claim as the Indemnifying Third Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;Claim.
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to If the Indemnifying Party notifies the right, which Indemnified Party within the Election Period that the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, elects to assume the defense of such claimthe Third Party Claim, including, without limitation, then the Indemnifying Party shall have the right to designate counsel defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 7.5(c). The Indemnifying Party shall have full control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claimdefense and proceedings including any compromise or settlement thereof; provided thatPROVIDED that any non-monetary aspect of any settlement shall require the consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (1) but only if such filing is reasonably necessary to protect its interests and either the Indemnified Party is actually entitled to indemnification hereunder or the Indemnifying Party assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Party shall deem necessary or appropriate to protect its interests; PROVIDED, THAT there is not a reasonable risk that such filings shall materially and appeals of adversely affect the Indemnifying Party's defense; PROVIDED FURTHER THAT prior to making any such claimfilings, the Indemnified Party must consent shall consult with the Indemnifying Party and shall permit the Indemnifying Party to review such filings. If requested by the Indemnifying Party, the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in writing contesting any Third Party Claim which the Indemnifying Party elects to the entry contest. The Indemnified Party may participate in, but not control, any defense or settlement of any settlementThird Party Claim controlled by the Indemnifying Party pursuant to this Section 7.5(c) and, compromiseexcept as permitted above, shall bear its own costs and expenses with respect to such participation.
(iv) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to defend the Indemnified Party pursuant to this Section 7.5(c), or entry if the Indemnifying Party elects to defend the Indemnified Party pursuant to this Section 7.5(c) but fails to prosecute and handle the Third Party Claim with reasonable diligence and promptness, then the Indemnified Party shall have the right to defend, at the sole cost and expense of judgment in respect thereof (the Indemnifying Party, the Third Party Claim by all appropriate proceedings. The Indemnified Party shall have full control of such defense and proceedings; PROVIDED, HOWEVER, that the Indemnified Party may not enter into, without the Indemnifying Party's consent, which consent shall not be unreasonably withheld); (2) if the withheld or delayed, any compromise or settlement of such Third Party Claim. The Indemnifying Party assumes may participate in, but not control, any defense or settlement controlled by the defense of such claimIndemnified Party pursuant to this Section 7.5(c), and the Indemnifying Party shall not be liable for any fees bear its own costs and expenses of counsel for any with respect to such participation.
(v) In the event an Indemnified Party incurred thereafter should have a claim against an Indemnifying Party hereunder which does not involve a Third Party Claim, the Indemnified Party shall transmit to the Indemnifying Party a written notice (the "INDEMNITY NOTICE") describing in connection with reasonable detail the nature of the claim, an estimate of the amount of damages attributable to such claim except that, if such and the basis of the Indemnified Party's request for indemnification under this Agreement. If the Indemnifying Party does not notify the Indemnified Party reasonably determines within sixty (60) days from its receipt of the Indemnity Notice that counsel designated the Indemnifying Party disputes such claim or the calculation of Damages associated therewith, the claim specified by the Indemnified Party in the Indemnity Notice shall be deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has timely disputed such claim, as provided above, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(vi) Payments of all amounts owing by the Indemnifying Party has pursuant to Sections 7.5(c)(iii) and 7.5(c)(iv) hereof shall be made within thirty (30) days after the latest of (i) the settlement of the Third Party Claim, (ii) the expiration of the period for appeal of a conflict final adjudication of interest due to such Third Party Claim or (iii) the conflicting interests expiration of the period for appeal of a final adjudication of the Indemnifying Party and Party's liability to the Indemnified Party or that either an Indemnified Party or under this Agreement. Payments of all amounts owing by the Indemnifying Party has defenses that are not available pursuant to Section 7.5(c)(v) hereof shall be made within thirty (30) days after the other, such Indemnifying Party shall pay later of (i) the reasonable fees and disbursements expiration of one counsel the sixty-day Indemnity Notice period or (in addition to any local counselii) separate from such the expiration of the period for appeal of a final adjudication of the Indemnifying Party's own counsel for all liability to the Indemnified Parties Party under this Agreement.
(vii) The failure to provide notice as provided in connection with this Section 7.5(c) shall not excuse any one action party from its continuing obligations hereunder; however, any claim shall be reduced by the damages resulting from such party's delay or separate but similar failure to provide notice as provided in this Section 7.5(c).
(viii) The indemnification obligations set forth in this Section 7.5 are made notwithstanding any investigation made by or related actions on behalf of any of the parties hereto or the results of any such investigation and notwithstanding the participation of any party in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified PartyClosing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Figgie International Inc /De/)
Indemnification Procedures. With respect (a) In the event that any action, proceeding, complaint or litigation is commenced by a third party involving a claim for which a party required to any claim made or threatened against provide indemnity hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification under this Section 9 (an "“Indemnified Party"”) hereunder (an “Asserted Liability”), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability (or with respect to Indemnified Parties the “Claim Notice”); provided that are directors, officers, stockholders, members, partners, agents or employees no delay on the part of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of in giving any such claim within 10 days after such claim is made or threatened, which notice Claim Notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 any indemnification obligation hereunder except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;delay.
(iib) Except with respect to Tax Contests, which shall be governed by Section 7.7, the Indemnifying Party shall have 30 days (or less if the nature of the Asserted Liability requires) from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party whether or not the Indemnifying Party desires, at the expense of the Indemnifying Party’s sole cost and expense and by counsel of its own choosing, provide which shall be reasonably satisfactory to the Indemnified Party, to defend against such Asserted Liability; provided that if, under applicable standards of professional conduct a conflict on any significant issue between the Indemnifying Party and any Indemnified Party exists in respect of such information Asserted Liability, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and cooperation expenses of one additional counsel to be retained in order to resolve such conflict, promptly upon presentation by the Indemnified Party of invoices or other documentation evidencing such amounts to be reimbursed. If the Indemnifying Party undertakes to defend against such Asserted Liability, (i) the Indemnifying Party shall use its reasonable efforts to defend and protect the interests of the Indemnified Party with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided thatAsserted Liability, (1ii) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent Party, prior to or during the period in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claimmatter, may take such reasonable actions as the Indemnified Party deems necessary to preserve any and all rights with respect to such matter, without such actions being construed as a waiver of the Indemnified Party’s rights to defense and indemnification pursuant to this Agreement and (iii) the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, consent to any settlement which (A) does not contain an unconditional release of the Indemnified Party from the subject matter of the settlement and (B) imposes any liabilities or obligations on the Indemnified Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof. If the Indemnified Party desires to participate in any such defense it may do so at its sole cost and expense. If the Indemnifying Party does not undertake within the Notice Period to defend against such Asserted Liability, then the Indemnifying Party shall have the right to participate in any such defense at its sole cost and expense, but, in such case, the Indemnified Party shall control the investigation and defense and may settle or take any other actions the Indemnified Party deems reasonably advisable without in any way waiving or otherwise affecting the Indemnified Party’s rights to indemnification pursuant to this Agreement. The Indemnified Party and the Indemnifying Party agree to make available to each other, their counsel and other representatives, all information and documents available to them which relate to such claim or demand. The Indemnified Party and the Indemnifying Party and the Company and its employees also agree to render to each other such assistance and cooperation as may reasonably be required to ensure the proper and adequate defense of such claim or demand.
(c) In calculating amounts payable to an Indemnified Party, the amount of the indemnified Losses shall not be liable duplicative of any other Loss for any fees which an indemnification claim has been made and expenses shall be computed net of counsel for any (i) payments actually recovered by the Indemnified Party incurred thereafter in connection or the Company under any insurance policy with respect to such claim except thatLosses, if such (ii) any prior or subsequent recovery by the Indemnified Party reasonably determines from any Person with respect to such Losses, (iii) any Tax benefit actually realized by the Indemnified Party or the Company with respect to such Losses and (iv) any reserves set forth with respect to such Losses on the Financial Statements. In the event of the occurrence of any Loss, an Indemnified Party shall use its reasonable best efforts to seek recovery under any applicable insurance policies and against any other Persons responsible therefor. To the extent that counsel designated an Indemnified Party or its Affiliates receives any such recovery after an indemnification payment by the Indemnifying Party has a conflict of interest due to the conflicting interests of been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any such indemnification payment.
(d) In no event shall any claim for indemnification be made under any provision of this Agreement after the expiration of the applicable survival period set forth in Section 8.1.
(e) Except in the case of any claim of fraud, the indemnification provisions set forth in Section 7.2(e), Section 7.3(e), Section 8.2(a), and Section 8.3(a) shall be deemed the Indemnified Party or that either an Indemnified Party or sole and exclusive remedies of the Indemnifying Party has defenses that are not available to parties, from and after the otherClosing Date, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition with respect to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out breach of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partythis Agreement.
Appears in 1 contract
Indemnification Procedures. With respect to any claim made or threatened against a Each party entitled to indemnification under this Section 9 ARTICLE VII (an "the “Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ”) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice (“Indemnification Notice”) to the party required to indemnify provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party under this Section 9 (whose approval shall not unreasonably be withheld). The Indemnified Party may participate in such defense at the "Indemnified Party’s own expense; provided, that the Indemnified Party shall be entitled to engage, at the Indemnifying Party"’s expense, separate counsel to represent Indemnified Party in the defense of any claim if (i) of such Indemnifying Party fails to engage counsel and to defend against the claim within 10 20 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim Indemnified Party’s delivery of the Indemnification Notice to the Indemnifying Party, (ii) if any conflict of interest arises between the Indemnifying Party and the amount (or an estimate of Indemnified Party with respect to the amount) defense of the claim; provided, however, or (iii) if the Indemnified Party has one or more defenses that are not available to or are different from those available to the Indemnifying Party. The failure of any an Indemnified Party to provide such notice to the Indemnifying Party give Indemnification Notice as provided in this Section 7.04 shall not relieve the Indemnifying Party of its obligations under this Section 9 ARTICLE VII except to the extent such failure results in the loss of substantive or procedural rights in the defense such action, but such failure shall not relieve the Indemnifying Party of any liability that the Indemnifying Party is materially prejudiced or may have to any Indemnified Party otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the than under this ARTICLE VII. No Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission litigation, shall, except with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make consent of which would expose such each Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheldwithheld or delayed); (2) if , consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the Indemnifying Party assumes giving by the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if claimant or plaintiff to such Indemnified Party reasonably determines of a release from all liability in respect to such claim or litigation; provided, that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party may withhold its consent to any settlement or the Indemnifying Party has defenses entry of any judgment that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to would impose any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action injunctive or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such relief upon Indemnified Party.
Appears in 1 contract
Indemnification Procedures. With respect to any claim made or threatened against a A party entitled to indemnification under this Section 9 hereunder (each, an "“Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ”) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required indemnifying it (the “Indemnifying Party”) of any claim with respect to indemnify which it seeks indemnification promptly after the discovery by such Indemnified Party under this Section 9 (the "Indemnifying Party") of such any matters giving rise to a claim within 10 days after such claim is made or threatenedfor indemnification, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, provided that the failure of any Indemnified Party to provide such give notice to the Indemnifying Party as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 9 except Article VII unless and to the extent that the Indemnifying Party is materially shall have been actually prejudiced or otherwise forfeits rights or defenses by reason the failure of such failure;
Indemnified Party to so notify such party. Such notice shall describe in reasonable detail such claim and shall include (iiif then known, and if not then known, a reasonable and good faith estimate of) the amount or the method of computation of the amount of such claim and reference to the provision(s) of this Agreement on which such claim is based. In case any such action, suit, claim or proceeding is brought against an Indemnified Party, the Indemnified Party shall be entitled to hire, at its own expense, separate counsel and participate in the defense thereof; provided, however, the Indemnifying Party shall be entitled to assume and conduct the defense thereof, unless the counsel to the Indemnified Party advises such Indemnifying Party in writing that such claim involves a conflict of interest (other than one of a monetary nature) that would reasonably be expected to make it inappropriate for the same counsel to represent both the Indemnifying Party and the Indemnified Party, in which case the Indemnified Party shall be entitled to retain its own counsel at the cost and expense of the Indemnifying Party, provide Party (except that the Indemnifying Party such information shall only be liable for the legal fees and cooperation expenses of one law firm for all Indemnified Parties, taken together with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement any single action or group of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheldrelated actions); (2) if . If the Indemnifying Party assumes the defense of any claim, all Indemnified Parties shall thereafter deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Party relating to the claim, and each Indemnified Party shall cooperate in the defense or prosecution of such claim. 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 claim, the and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not be liable for any fees and expenses settlement of counsel for any Indemnified Party incurred thereafter in connection with such action, suit, claim except thator proceeding effected without its written consent; provided, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderhowever, the Indemnifying Party shall not unreasonably withhold, condition or delay its consent. The Indemnifying Party further agrees that it will not, without the Indemnified Party’s prior written consent (which shall not be entitled unreasonably withheld, conditioned or delayed), settle or compromise any claim or consent to appoint counsel to represent entry of any judgment in respect thereof in any pending or threatened action, suit, claim or proceeding in respect of which indemnification has been sought hereunder unless such settlement or compromise (i) includes an unconditional release of such Indemnified Party nor shall from all liability arising out of such action, suit, claim or proceeding, (ii) does not impose injunctive or other equitable relief against the Indemnified Party and (iii) does not require the Indemnified Party to make a statement or admission of fault, culpability or failure to act. If an offer is made to settle a pending or threatened action, suit, claim or proceeding, which offer the Indemnifying Party reimburse is permitted to settle under this Section 7.3 only upon the prior written consent of the Indemnified Party, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give prompt written notice to the Indemnified Party for any costs of counsel to that effect. If the Indemnified Party fails to consent to such firm offer within twenty (20) calendar days after its receipt of such notice, the Indemnified PartyParty may continue to contest or defend such claim and, in such event, the maximum liability of the Indemnifying Party as to such claim will not exceed the amount of such settlement offer, plus costs and expenses paid or incurred by the Indemnified Party through the date such settlement offer is given to the Indemnified Party and which amount is otherwise indemnifiable hereunder.
Appears in 1 contract
Sources: Subscription Agreement (21st Century Oncology Holdings, Inc.)
Indemnification Procedures. With a. If any third party shall notify any Party to this Agreement (the "INDEMNIFIED PARTY") with respect to any matter which may give rise to a claim made or threatened for indemnification against a party entitled any other Party to indemnification this Agreement (the "INDEMNIFYING PARTY") under this Section 9 (an "Indemnified Party")Article 10, or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such then the Indemnified Party shall notify each ----------- Indemnifying Party thereof with five (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees 5) days of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") 's knowledge of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that no delay on the failure part of any the -------- ------- Indemnified Party to provide such notice to the 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 is prejudiced by the delay. Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its obligations under this Section 9 except choice reasonably satisfactory to the extent Indemnified Party so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within 15 days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason will undertake the defense of such failure;
claim, (iiB) 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, and (C) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. The Indemnified Party may participate in the defense of such claim with co-counsel of its choice; provided, however, that the fees and expenses of the -------- ------- Indemnified Party's counsel shall be at the expense of the Indemnified Party unless (A) the Indemnifying Party has agreed in writing to pay such fees and expenses, (B) the Indemnifying Party has failed to assume the defense and employ counsel as provided herein or (C) a claim shall have been brought or asserted against the Indemnifying Party as well as the Indemnified Party, and such Indemnified Party shall have been advised in writing by counsel that there may be one or more factual or legal defenses available to it that are in conflict with those available to the Indemnifying Party, in which case such co-counsel shall be at the expense of the Indemnifying Party; provided, provide however, that the -------- ------- Indemnifying Party will not be required to pay the fees and expenses of more than one separate principal counsel (and one appropriate local counsel) for all Indemnified Parties. If, within such 15-day period, the Indemnifying Party does not assume the defense of such information matter or fails to defend the matter in the manner set forth above, the Indemnified Party may defend against the matter in any manner that it reasonably may deem appropriate and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to will reimburse the Indemnified Party promptly and periodically for the costs of defending against such claim (including reasonable attorneys' fees and expenses) and the Indemnifying Party at such reasonable times as will remain responsible for any Adverse Consequences the Indemnifying Indemnified Party may request;
(iii) suffer resulting from, arising out of, relating to, in the event suit is brought with respect to such claimnature of, upon reasonable prior notice, afford or caused by the claim to the Indemnifying Party fullest extent provided herein, provided, however, that the right, which the Indemnifying Indemnified Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or not consent to the entry of ----- ------- any judgment in with respect thereof, in each case to the matter or enter into any settlement with respect to such matter without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall may not be unreasonably withheld); .
b. Except for (2i) if the Indemnifying Party assumes the defense of such claimfraud, the Indemnifying Party in which case all remedies at law or in equity shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the otherParties, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4ii) if other remedies expressly provided for in this Agreement, the Parties hereby agree that the foregoing provisions of this Article 10 shall be the sole and exclusive means of recovery ---------- of a Party hereto or any Indemnified Party waives its right other Person entitled to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.under this Article 10. -----------
Appears in 1 contract
Indemnification Procedures. With respect to any A Seller Indemnified Party or a Purchaser Indemnified Party making a claim made or threatened against a party entitled to indemnification under this Section 9 (an "6 is referred to as the “Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified ” and the party against whom such claims are asserted is referred to as the “Indemnifying Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):”
(i) give written If any Indemnified Party receives notice of the assertion or commencement of any claim, action or proceeding made or brought by any Person who is not a party to this Agreement against such Indemnified Party with respect to which the party required Indemnifying Party is obligated to indemnify provide indemnification under this Agreement (each a “Third-Party Claim”), the Indemnified Party under this Section 9 shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than twenty (the "Indemnifying Party"20) calendar days after receipt of such claim within 10 days after notice of such claim is made or threatened, which Third-Party Claim. The failure to give such prompt written notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; providednot, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 indemnification obligations, except and only to the extent that the Indemnifying Party’s ability to defend such Third-Party Claim is materially prejudiced by such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, specifying the provisions under this Agreement under which the Third-Party Claim is made, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or otherwise forfeits rights may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or defenses by reason giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and with counsel reasonably satisfactory to the Indemnified Party, and the Indemnified Party shall cooperate in good faith in such defense. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such failure;
(ii) counsel shall be at the expense of the Indemnifying Indemnified Party, provide . If the Indemnifying Party elects not to assume the defense of such information Third-Party Claim, or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party may, subject to Section 6(d)(ii), pay, compromise or defend such Third-Party Claim and cooperation with respect receive indemnification for any and all Losses based upon, arising from or relating to such claim Third-Party Claim. The parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, all records relating to such Third-Party Claim and management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
(ii) Notwithstanding any other provision of this Agreement, the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and shall not enter into settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Third-Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case Claim without the prior written consent of the Indemnifying Indemnified Party; and
(v) upon reasonable prior notice, afford except as provided in this Section 6(d)(ii). If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third-Party Claim and the Indemnifying Party desires to accept and agree to such offer, the rightIndemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third-Party Claim and in such event, the maximum liability of the Indemnifying Party's sole discretion Party as to such Third-Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and at such Indemnifying Party's sole expense, also fails to assume the defense of such Third-Party Claim, the Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such firm offer to settle such Third-Party Claim.
(iii) An Indemnified Party may assert any claim, includingaction or proceeding on account of a Loss that does not result from a Third-Party Claim (a “Direct Claim”) by giving the Indemnifying Party reasonably prompt written notice. The failure to give such prompt written notice shall not, without limitationhowever, relieve the Indemnifying Party of its indemnification obligations. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, specifying the provisions under this Agreement under which the Direct Claim is made, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party (the “Claimed Amount”). The Indemnifying Party shall have thirty (30) days after its receipt of such notice to respond in writing to such Direct Claim, either (i) agreeing that the Indemnified Party is entitled to receive all of the Claimed Amount or (ii) disputing that the Indemnified Party is entitled to any or all of the Claimed Amount and the basis for such dispute. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim, and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Buyer’s premises and personnel and the right to designate counsel examine and to control all negotiationscopy any accounts, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1documents or records) if as the Indemnifying Party assumes the defense and appeals or any of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if its professional advisors may reasonably request. If the Indemnifying Party assumes the defense of does not so respond within such claimthirty (30)-day period, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any deemed to have agreed that an amount equal to the entire Claimed Amount shall be promptly payable to the Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by Party. If the Indemnifying Party has disputes only a conflict portion of interest due the Claimed Amount and does not dispute the balance of such Claimed Amount, then the portion of such Loss not in dispute shall be promptly paid to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Focus Impact BH3 NewCo, Inc.)
Indemnification Procedures. With respect to All claims for indemnification by any claim made or threatened against a party entitled to indemnification under Article IV (an “Indemnified Party”) based on or arising from a third party claim shall be asserted and resolved as set forth in this Section 9 (an "Indemnified Party"), 4.3. In the event that any claim or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, demand by a third party for which such Indemnified Party is or a party (the “Indemnifying Party”) may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 hereunder (a “Claim”) is asserted against or sought to be collected from any Indemnified Party by a third party, such Indemnified Party shall as promptly as practicable notify the "Indemnifying Party") Party in writing of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim Claim and the amount or the estimated amount thereof to the extent then feasible as well as the basis, in reasonable detail, of why the Indemnified Party believes that it is entitled to indemnification hereunder (or an estimate the “Claim Notice”). The failure on the part of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide give any such notice to the Indemnifying Party Claim Notice in a reasonably prompt manner shall not relieve the Indemnifying Party of its obligations under this Section 9 any indemnification obligation hereunder except to the extent that the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall have 30 days from delivery of the Claim Notice (the “Notice Period”) to notify the Indemnified Party whether or otherwise forfeits rights or defenses not the Indemnifying Party acknowledges its obligations under this Article IV and elects to defend the Indemnified Party against such Claim; and prior to such time as it has been notified by reason the Indemnifying Party as to its intention, the Indemnified Party shall take all reasonable actions to preserve its defenses. All costs and expenses incurred by the Indemnifying Party in defending such Claim shall be a liability of, and shall be paid by, the Indemnifying Party; provided, however, that the amount of such failure;
(ii) at the expense costs and expenses shall be a liability of the Indemnifying Party, provide Party hereunder but shall not be subject to the limitations set forth in Section 4.4 hereof. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such information and cooperation with respect to such claim as Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense. If any Indemnified Party desires to participate in any such defense it may reasonably requiredo so at its sole cost and expense. The Indemnified Party shall not settle, including, without limitation, making appropriate personnel available to admit or in any other way materially prejudice a Claim for which it is indemnified by the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the . The Indemnifying Party may, with the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense consent of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if , settle or compromise any action or consent to the entry of any judgment. Notwithstanding the foregoing, the Indemnified Party shall have the sole right to defend, settle or compromise any Claim with respect to which it has agreed in writing to waive its right to indemnification pursuant to this Agreement. If the Indemnifying Party assumes elects not to defend the Indemnified Party against such Claim, then the Indemnified Party shall defend such Claim by appropriate proceedings and shall control the defense of such claimClaim, and in such case may, without the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests consent of the Indemnifying Party (which consent shall not be unreasonably withheld) settle or compromise such action or consent to the entry of any judgment. The amount required to be paid in respect of any such Claim, or, if the same be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be the liability of the Indemnifying Party hereunder, subject to the limitations set forth in Section 4.4. The Indemnified Party will give the Indemnifying Party and its counsel reasonable access to the personnel, business records and other documents within the possession of the Indemnified Party or that either an its Affiliates, and shall permit them to consult with the counsel and other advisors of the Indemnified Party Party. The Indemnified Party, if requested by the Indemnifying Party, shall cooperate and assist in the defense of all such Claims at the expense of the Indemnifying Party. Notwithstanding anything in this Section 4.3 to the contrary, any indemnification claims made pursuant to Section 4.2(a)(ii) hereof shall be paid within five (5) business days of the receipt by TECO of written documentation to the reasonable satisfaction of TECO evidencing the payment by the Transferees or the Indemnifying Party has defenses that are not available Banks of any privileges tax or so-called “speculative builder tax” relating to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out transfer of the same general allegations Gila River Partnership Interests or circumstances; (3) the Gila River Facility for a period prior to entering into any final settlement the date of this Agreement. Any such indemnification payment made pursuant to Section 4.2(a)(ii) or compromise, such Indemnifying Party shall use its best reasonable efforts in the light immediately preceding sentence of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party this Section 4.3 shall not be entitled subject to appoint counsel the limitations of liability pursuant to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified PartySection 4.4(b) hereof.
Appears in 1 contract
Sources: Representation and Indemnification Agreement (Teco Energy Inc)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) Subject to the additional obligations set forth in Section 9 (an "Indemnified Party")9.3(b) below and the limitations set forth in Section 10.1, or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to a party claiming indemnification under this Section 9, such Agreement (an “Indemnified Party”) shall promptly (i) notify the party from whom indemnification is sought (the “Indemnifying Party”) of any third-party claim or claims asserted against the Indemnified Party shall (or “Third Party Claim”) for which indemnification is sought and (ii) transmit to the Indemnifying Party a copy of all papers served with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
claim (iif any) give and a written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party"“Claim Notice”) of such claim within 10 days after such claim is made or threatened, which notice shall specify containing a description in reasonable detail of the nature of the claim and the amount (or Third Party Claim, an estimate of the amount) amount of damages attributable to the Third Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim; provided, however, that ) and the basis of the Indemnified Party’s request for indemnification under this Agreement. The failure of any by an Indemnified Party to provide promptly notify an Indemnifying Party of an indemnity claim shall not relieve an Indemnifying Party of its indemnity obligations under this Agreement except to the extent the Indemnifying Party is prejudiced by such notice to delay. Within fifteen (15) days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall not relieve notify the Indemnified Party (i) whether the Indemnifying Party of disputes its obligations under this Section 9 except potential liability to the extent that Indemnified Party with respect to such Third Party Claim and (ii) whether the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) desires, at the sole cost and expense of the Indemnifying Party, provide to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense and with counsel reasonably acceptable to the Indemnified Party, such information Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the reasonable discretion of the Indemnifying Party in accordance with this Section 9.3. The Indemnifying Party shall have full control of such defense and cooperation proceedings. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party, to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests. If requested by the Indemnifying Party, the Indemnified Party agrees to reasonably cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including without limitation the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any Person. Except as otherwise provided herein, the Indemnified Party may participate in, but not control, any defense or settlement of any Third Party claim controlled by the Indemnifying Party pursuant to this Section 9.3 and shall bear its own costs and expenses with respect to such claim as participation. If the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available fails to notify the Indemnified Party within the Election Period that the Indemnifying Party at such reasonable times as elects to defend the Indemnified Party pursuant to the preceding paragraph, or if the Indemnifying Party elects to defend the Indemnified Party but fails to prosecute or settle the Third Party Claim as herein provided, or if the Indemnified Party reasonably objects to such election on the grounds that counsel for such Indemnifying Party cannot represent both the Indemnified Party and the Indemnifying Parties because such representation would be reasonably likely to result in a conflict of interest, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party to a final conclusion or settled. If requested by the Indemnified Party, the Indemnifying Party agrees to reasonably cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim. The Indemnified Party shall have full control of such defense and proceedings. The Indemnifying Party may request;
(iii) in participate in, but not control, any defense or settlement controlled by the event suit is brought Indemnified Party pursuant to this Section 9.3, and the Indemnifying Party shall bear its own costs and expenses with respect to such claimparticipation. The Indemnifying Party shall not settle or compromise any Third Party Claim unless (i) the terms of such compromise or settlement require no more than the payment of money (i.e., upon reasonable prior noticesuch compromise or settlement does not require the Indemnified Party to admit any wrongdoing or take or refrain from taking any action), afford to (ii) the full amount of such monetary compromise or settlement will be paid by the Indemnifying Party and (iii) the right, which the Indemnifying Indemnified Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement receives as part of such claim;
(iv) subject settlement a legal, binding and enforceable unconditional satisfaction and/or release, in form and substance reasonably satisfactory to clause (v) belowit, neither incur providing that such Third Party Claim and any material expense to defend against nor release or settle any such claim or make any admission claimed liability of the Indemnified Party with respect thereto (other than routine is being fully satisfied by reason of such compromise or incontestable admissions or factual admissions settlement and that the failure to make of which would expose such Indemnified Party is being released from any and all obligations or liabilities it may have with respect thereto. The Indemnified Party shall not settle or admit liability to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case Third Party Claim without the prior written consent of the Indemnifying Party unless (x) the Indemnifying Party has disputed its potential liability to the Indemnified Party; and, and such dispute either has not been resolved or has been resolved in favor of the Indemnifying Party or (y) the Indemnifying Party has failed to respond to the Indemnified Party’s Claim Notice. Notwithstanding anything in the foregoing and for the purpose of clarity, the Sellers shall the full right to control and direct any litigation regarding the Excluded Entities.
(vb) upon reasonable prior noticeIn the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim, afford the Indemnified Party shall transmit to the Indemnifying Party a written notice describing in reasonable detail the rightnature of the claim, in an estimate of the amount of damages attributable to such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, claim to assume the defense extent feasible (which estimate shall not be conclusive of the final amount of such claim, including, without limitation, ) and the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals basis of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable Party’s request for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partyunder this Agreement.
Appears in 1 contract
Indemnification Procedures. With respect (a) In the event that any Action is commenced by a third party involving a claim for which a party required to any claim made or threatened against provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification under this Section 9 (an "“Indemnified Party"”) hereunder (an “Asserted Liability”), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability (or with respect to Indemnified Parties that are directorsthe “Claim Notice”)(and, officersin any event, stockholders, members, partners, agents or employees within fifteen (15) days of service of the Collateral Manager, Action); provided that no delay on the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify part of the Indemnified Party under this Section 9 (the "Indemnifying Party") of in giving any such claim within 10 days after such claim is made or threatened, which notice Claim Notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 any indemnification obligation hereunder except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason such delay. The Indemnifying Party shall have 30 days from its receipt of such failure;the Claim Notice (the “Notice Period”) to notify
(iib) at the expense of the Indemnifying Party, provide If the Indemnifying Party does not undertake within the Notice Period to defend against such Asserted Liability, then the Indemnified Party shall defend the Asserted Liability and the Indemnifying Party shall bear the reasonable costs and expenses of the Indemnified Party of such defence. In such case, the Indemnified Party shall control the investigation and defence and may settle or take any other actions the Indemnified Party deems reasonably advisable without in any way waiving or otherwise affecting the Indemnified Party’s rights to indemnification pursuant to this Agreement. The Indemnified Party and the Indemnifying Party agree to make available to each other, their counsel and other representatives, all information and cooperation with respect documents available to them which relate to such claim as or demand. The Indemnified Party and the Indemnifying Party also agree to render to each other such assistance and cooperation as may reasonably require, including, without limitation, making appropriate personnel available be required to ensure the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion proper and at its expense, to participate in the investigation, defense adequate defence and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partydemand.
Appears in 1 contract
Sources: Share Purchase Agreement
Indemnification Procedures. With respect Any Seller Indemnified Party seeking indemnity under this Article VIII (referred to in this Section 8.3 as the “Indemnitee”), shall promptly give the Buyer (referred to in this Section 8.3 as the “Indemnitor”) notice in writing of any claim claims for Losses made or threatened against Proceedings commenced for which the Indemnitee claims to be entitled to defense or indemnification under this Agreement. Such notice shall state with as much detail as is reasonably practicable the facts and circumstances giving rise to the Losses, a copy of any documentation received from any third party in connection with such Losses and the amount and calculation of the Losses for which the Indemnitee is entitled to indemnification under this Section 9 (an "Indemnified Party")Article VIII, or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may and shall be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of given promptly after the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") Indemnitee becomes aware of such claim within 10 days after such claim is made Losses or threatened, which notice Proceedings. The Indemnitee shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice promptly deliver to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except any information or documentation related to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses foregoing reasonably requested by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide . If the Indemnifying Party such information Indemnitor undertakes to control and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make Proceedings in accordance with the next sentence, the Indemnitor shall reasonably confer with the Indemnitee concerning the defense of any admission such claim or Proceedings and the Indemnitee shall reasonably cooperate with respect thereto the Indemnitor and its counsel in the defense against, and settlement of, such claim or Proceedings. Subject to the remainder of this Section 8.3, the Indemnitor or its insurer shall have the right, but not the obligation, to retain control of the conduct of such defense, including the selection and management of counsel. Notwithstanding the foregoing, however, if the Indemnitor does not agree to provide defense and indemnity, the Indemnitee shall have the right to control its own defense but shall not (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified i) settle any Third Party to unindemnified liability) nor permit a default claim or consent to the entry of any judgment with respect thereto which does not include an unconditional written release of the Indemnitee from all liability in respect thereofof such Third Party claim or (ii) settle any Third Party claim or consent to the entry of any judgment with respect thereto in any manner that would materially and adversely affect the Indemnitor (other than as a result of money damages covered by the indemnity), in each case case, without the prior first providing written consent notice of the Indemnifying Party; and
(v) upon reasonable prior notice, afford terms of such settlement and providing Indemnitor five Business Days to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, agree to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals indemnification of such claim; provided thatfurther, (1) if that the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent Indemnitor shall nevertheless be entitled to participate in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claimProceeding at its own cost and expense. The Indemnitee may, upon written notice to the Indemnifying Party Indemnitor and at the Indemnitee’s sole cost and expense, select its own counsel to participate in and be present for the defense of any such Loss or Proceeding, provided such counsel shall not be liable for take any fees action in the course of such defense or Proceeding to prejudice the defense of such Loss or proceeding and expenses of counsel for shall not assert any Indemnified Party incurred thereafter position in connection any Proceeding inconsistent with such claim except that, if such Indemnified Party reasonably determines that counsel designated asserted by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified PartyIndemnitor.
Appears in 1 contract
Indemnification Procedures. With respect (a) Any Purchaser Indemnitee or Seller Indemnitee making a claim for indemnification pursuant to any claim made or threatened against a party entitled to indemnification under this Section 9 Article VI (an "“Indemnified Party"), ”) must give the other Party or compulsory process or request or other Parties from whom indemnification is sought (an “Indemnifying Party”) written notice of such claim (a “Claim Notice”) promptly after the Indemnified Party receives any written notice of any loss, claim, damage Proceeding against or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify involving the Indemnified Party under this Section 9 (by a Governmental Authority or other third party, or otherwise discovers the "Indemnifying Party") of liability, obligation or facts giving rise to such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount for indemnification (or an estimate of the amount) of the claim“Claim”); provided, however, provided that the failure of any Indemnified Party to provide such notice to the notify or delay in notifying an Indemnifying Party shall will not relieve the Indemnifying Party of its obligations under pursuant to this Section 9 Article VI, except to the extent (and only to the extent) that such failure actually h▇▇▇▇ the Indemnifying Party. Such Claim Notice must contain a description of the Claim and the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known or reasonably ascertainable at such time; provided that such amount or estimated amount shall not be conclusive of the final amount, if any, of such Claim). Notwithstanding the foregoing, any claim for a breach of a representation or warranty or covenant must be delivered prior to the expiration of the applicable survival term.
(b) With respect to the defense of any Claim against or involving an Indemnified Party in which a Governmental Authority or other third party (“Third Party Claim”) in question seeks recovery of a sum of money for which a Claim Notice is provided (i) the Indemnifying Party is materially prejudiced shall have the right to participate in the defense of each Claim and (ii) the Indemnified Party shall fully cooperate with the Indemnifying Party and provide access to any and all applicable documents and other information and Persons reasonably requested by the Indemnifying Party; provided that the Indemnified Party shall have no obligation to disclose any documents or otherwise forfeits rights other information to the extent such disclosure in the Indemnified Party’s reasonable judgment may adversely affect the attorney-client privilege or defenses by reason work product protections related to such documents or other information.
(c) Notwithstanding Section 6.5(b), if the Indemnifying Party assumes the defense of the Claim, the Indemnified Party will be entitled to participate in the defense of such failure;Claim and to employ counsel of its choice for such purpose at its own expense; provided that the Indemnifying Party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party assumes control of such defense; provided, further, that the Indemnifying Party will not be entitled to assume control of the defense of such claim, if:
(i) the Indemnifying Party fails to elect in writing to assume the defense of the Claim pursuant to Section 6.5(b) within twenty (20) calendar days of receipt of the applicable Claim Notice,
(ii) at a conflict of interest exists or could reasonably be expected to arise which, under applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel from representing both the expense of the Indemnifying Party, provide Indemnified Party and the Indemnifying Party in such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;Proceeding,
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to a court of competent jurisdiction rules that the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, has failed or is failing to participate in the investigation, defense and settlement of prosecute or defend vigorously such claim;; or
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions relates to Taxes of the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofParty, provided, further, that, in each case case, the Indemnified Party shall be prohibited from compromising or settling any Claim without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); withheld or delayed.
(2d) if In the event that the Indemnifying Party assumes the defense of such claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance, personnel, witnesses and materials as the Indemnifying Party may reasonably request. Regardless of which Party defends such claim, the other Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing.
(e) Without the prior written consent of the Indemnified Party (which shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party unreasonably withheld or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunderdelayed), the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall enter into any settlement of any Claim for which the Indemnifying Party reimburse has assumed the defense pursuant to Section 6.5 hereof if (i) pursuant to or as a result of such settlement, such settlement would result in any liability on the part of the Indemnified Party for any costs of counsel which the Indemnified Party is not entitled to indemnification hereunder or (ii) the settlement involves anything other than monetary damages. If a firm offer is made to settle such claim, which offer the Indemnifying Party is permitted to settle under this Section 6.5, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnified Party to that effect. If the Indemnified Party objects to such firm offer within ten (10) calendar days after its receipt of such notice, the Indemnified Party may continue to contest or defend such claim and, in such event, the maximum liability of the Indemnifying Party as to such claim shall not exceed such amount of such settlement offer payable by the Indemnifying Party hereunder, plus other Losses paid or incurred by the Indemnified Party up to the point such notice had been delivered to the Indemnified Party.
Appears in 1 contract
Indemnification Procedures. With respect to (a) Whenever any claim made or threatened against a shall arise for indemnification under this Article VII (an “Indemnification Claim”), the party entitled to indemnification under this Section 9 (an "the “Indemnified Party"), or compulsory process or request or other ”) shall promptly provide written notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice Indemnification Claim to the party required obligated to indemnify provide indemnification (the “Indemnifying Party”), but in any event not later than thirty (30) days after the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature becomes aware of the claim and the amount (or an estimate of the amount) of the claimIndemnification Claim; provided, however, provided that the failure of any Indemnified Party to provide timely give such written notice to the Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligations under this Section 9 except and only to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits required to forfeit rights or defenses by reason of such failure;. Such notice shall describe the Indemnification Claim in reasonable detail, shall include copies of all available material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party.
(iib) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the The Indemnifying Party shall not be entitled to appoint counsel participate in the defense of any Buyer Indemnitee with respect to represent such any Third Party Claim or direct claim, and will have no right to defend the Indemnified Party nor against the Third Party Claim or direct claim. The Indemnified Party will, together with the Attorney General of the State of Texas, undertake the defense, compromise or settlement of each Third Party Claim and direct claim on behalf of and for the account and risk of the Indemnifying Party; provided, however, that no Third Party Claim or direct claim shall be compromised or settled without concurrent notice to the Indemnifying Party. Notwithstanding anything to the contrary in this Section 7.05(b), if the Indemnifying Party reimburse is a party to a direct claim, the Indemnifying Party shall be entitled to conduct its own defense of such direct claim, but not the defense of any Indemnified Party for concerning such direct claim. No action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any costs damages resulting therefrom.
(c) The Indemnifying Party shall cooperate in all commercially reasonable respects with the Indemnified Party and the Attorney General of counsel the State of Texas in the investigation, trial and defense of any Action that may be subject to such this Article VII and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. The Indemnifying Party shall assist and cooperate, at the cost of the Indemnifying Party, with the Indemnified PartyParty in the making of settlements and the enforcement of any right of contribution to which the Indemnified Party may be entitled from any Person or entity in connection with the subject matter of any litigation subject to indemnification hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bellicum Pharmaceuticals, Inc)
Indemnification Procedures. With (a) If any third party shall notify any Party to this Agreement (the “Indemnified Party”) with respect to any matter which may give rise to a claim made or threatened for indemnification against a party entitled any other Party to indemnification this Agreement (the “Indemnifying Party”) under this Section 9 (an "Indemnified Party")9.2, or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such then the Indemnified Party shall (or with respect to Indemnified Parties notify each Indemnifying Party thereof promptly; provided, however, that are directors, officers, stockholders, members, partners, agents or employees no delay on the part of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the "extent) the Indemnifying Party"Party thereby is prejudiced by the delay. Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within 15 days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party is electing to defend the Indemnified Party in respect of the Adverse Consequences the Indemnified Party suffers resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) 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, and (C) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. The Indemnified Party may participate in the defense of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature with co-counsel of the claim and the amount (or an estimate of the amount) of the claimits choice; provided, however, that the failure fees and expenses of any the Indemnified Party’s counsel shall be at the expense of the Indemnified Party unless (A) the Indemnifying Party has agreed in writing to provide pay such notice fees and expenses, (B) the Indemnifying Party has failed to assume the defense and employ counsel as provided herein or (C) a claim shall have been brought or asserted against the Indemnifying Party as well as the Indemnified Party, and there may be one or more factual or legal defenses available to the Indemnified Party that are in conflict with those available to the Indemnifying Party Party, in which case such co-counsel shall not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) be at the expense of the Indemnifying Party; provided, provide however, that the Indemnifying Party will not be required to pay the fees and expenses of more than one separate principal counsel (and any appropriate local counsel) for all Indemnified Parties. If, within such information and cooperation with respect to such claim as 15-day period, the Indemnifying Party may reasonably requiredoes not assume the defense of such matter or fails to defend the matter in the manner set forth above, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Indemnified Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle the matter in any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or manner that it reasonably may deem appropriate and may consent to the entry of any judgment in with respect thereofto the matter or enter into any settlement with respect to such matter, in each case without with the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); . The Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against such claim (2including reasonable attorneys’ fees and expenses) if and the Indemnifying Party assumes will remain responsible for any Adverse Consequences the defense Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim to the fullest extent provided herein.
(b) If an Indemnified Party’s notice of such claimindemnification does not relate to a claim or the commencement of an action or proceeding by a third party, the Indemnifying Party shall not be liable have 15 days after receipt of such notice to object to the subject matter and the amount of the claim for any fees and expenses of counsel for any indemnification set forth in such notice by delivering written notice thereof to the Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by Party. If the Indemnifying Party has a conflict of interest due does not so object within such 15-day period, it shall be conclusively deemed to have agreed to the conflicting interests matters set forth in such notice of indemnification. If the Indemnifying Party and sends notice to the Indemnified Party or that either an objecting to the matters set forth in such notice of indemnification, the Parties shall use their best efforts to settle such claim for indemnification. If the Parties are unable to settle such dispute, then the Indemnified Party or shall seek resolution of the Indemnifying Party has defenses dispute by initiating litigation in any jurisdiction in which litigation arising under this Agreement may be commenced by the Parties hereto.
(c) The Parties recognize and acknowledge that are not available a breach by any Seller of this Section 9.3 will cause irreparable and material loss and damage to the otherBuyer as to which the Buyer will not have an adequate remedy at law or in damages. Accordingly, each such Indemnifying Party shall pay acknowledges and agrees that the reasonable fees and disbursements issuance of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action an injunction or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party other equitable remedy is an appropriate remedy for any costs of counsel to such Indemnified Partybreach.
Appears in 1 contract
Sources: Asset Purchase Agreement (Red Robin Gourmet Burgers Inc)
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to All claims for indemnification under this Section 9 Agreement shall be asserted and resolved as follows:
(a) A party claiming indemnification under this Agreement (an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party ) shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
reasonable promptness (i) give written notice to notify the party required to indemnify the Indemnified Party under this Section 9 from whom indemnification is sought (the "Indemnifying Party") of any third-party claim or claims asserted against the Indemnified Party ("Third-Party Claim") for which indemnification is sought and (ii) transmit to the Indemnifying Party a copy of all papers served with respect to such claim within 10 (if any) and a written notice ("Claim Notice") containing a description in reasonable detail of the nature of the Third-Party Claim, an estimate of the amount of damages attributable to the Third-Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis of the Indemnified Party's request for indemnification under this Agreement. Within 15 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party disputes its potential liability to the Indemnified Party with respect to such Third-Party Claim and, if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to such Third-Party Claim, whether the Indemnifying Party elects to defend the Indemnified Party with respect to such Third-Party Claim. If the Indemnifying Party does not dispute its potential liability to the Indemnified Party within the Election Period and notifies the Indemnified Party that it elects to defend such Third-Party Claim, the Indemnifying Party shall control negotiations toward resolution of such claim is made without the necessity of litigation, and if litigation ensues, defend the same with counsel reasonably acceptable to the Indemnified Party, at the Indemnifying Party's expense, and the Indemnified Party shall extend reasonable cooperation in connection with such defense. The Indemnified Party shall be entitled to participate in, but not to control, the defense of any Third-Party Claim resulting in litigation, at its own cost and expense; provided, however, that if the parties to any suit or threatenedproceeding shall include the Indemnifying Party as well as the Indemnified Party, and the Indemnified Party shall have been advised by counsel that one or more legal defenses may be available to it that may not be available to the Indemnifying Party, then the Indemnified Party shall be entitled to elect to control such suit or proceeding, but the Indemnifying Party shall be obligated to bear the fees and expenses of counsel of the Indemnified Party, which shall be selected by the Indemnified Party in its complete and sole discretion. If the Indemnifying Party does not dispute its potential liability to the Indemnified Party within the Election Period and the Indemnifying Party fails to assume control of the negotiations prior to litigation or to defend such action within a reasonable time, the Indemnified Party shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and the Indemnifying Party shall be liable to the Indemnified Party for its expenses reasonably incurred or amounts paid in connection therewith. If the Indemnifying Party disputes its potential liability to the Indemnified Party within the Election Period or does not elect to defend such Third-Party Claim, then the Indemnified Party shall be entitled to assume control of such negotiations or defense of action, and the liability for the expense thereof, as well as any liability with respect to such Third-Party Claim, shall be determined as provided in Section 7.5 below. An Indemnified Party shall promptly provide all assistance reasonably requested by an Indemnifying Party in connection with the defense of any Third-Party Claim. If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to defend the Indemnified Party pursuant to the preceding paragraph, or if the Indemnifying Party elects to defend the Indemnified Party but fails to prosecute or settle the Third-Party Claim as herein provided, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third-Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings. Notwithstanding the foregoing, if the Indemnifying Party has delivered a written notice to the Indemnified Party to the effect that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article VII and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall specify not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses of such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.4, and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. Neither the Indemnifying Party nor the Indemnified Party shall settle, compromise or make any other disposition of any Third Party Claim which would or might result in any liability to the Indemnified Party or the Indemnifying Party under this Article VII without the written consent of such other party.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third-Party Claim, the Indemnified Party shall transmit to the Indemnifying Party a written notice (the "Indemnity Notice") describing in reasonable detail the nature of the claim and the amount (or claim, an estimate of the amount) amount of damages attributable to such claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim; provided, however, that ) and the failure basis of any the Indemnified Party to provide such notice to Party's request for indemnification under this Agreement. If the Indemnifying Party shall does not relieve notify the Indemnifying Indemnified Party within 15 days from its receipt of its obligations under this Section 9 except to the extent Indemnity Notice that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of disputes such claim, the claim specified by the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent Indemnity Notice shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has deemed a conflict of interest due to the conflicting interests liability of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eagle Usa Airfreight Inc)
Indemnification Procedures. With respect to (a) Within a reasonable period of time after the incurrence of any claim made or threatened against a party Loss by any Person entitled to indemnification under this pursuant to Section 9 6.1 (an "“Indemnified Party"”), including, any Third Party Claim which might give rise to indemnification hereunder, the Indemnified Party shall deliver to the party from which indemnification is sought (the “Indemnifying Party”) a certificate (the “Indemnification Certificate”), which shall:
(i) state that the Indemnified Party has paid or compulsory process properly accrued a Loss or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, anticipates that it will incur a Loss for which such Indemnified Party is or may be entitled to indemnification under pursuant to this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failureAgreement;
(ii) at the expense specify in reasonable detail each individual item of the Indemnifying PartyLoss, provide the Indemnifying amount to which the Indemnified Party alleges it is entitled, or the fact that the Indemnified Party is not yet able to quantify the amount to which it is allegedly entitled, the date such information item was paid or properly accrued, the basis for any anticipated liability and cooperation with respect the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;item is related; and
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford be delivered to the Indemnifying Party the right, which the Party.
(b) If an Indemnifying Party may exercise shall object to the indemnification of an Indemnified Party in its sole discretion and at its expense, to participate in the investigation, defense and settlement respect of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make claims specified in any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claimIndemnification Certificate, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except thatshall, if such Indemnified Party reasonably determines that counsel designated within ten (10) Business Days after receipt by the Indemnifying Party has a conflict of interest due such Indemnification Certificate, deliver to the conflicting interests of Indemnified Party a written notice to such effect and the Indemnifying Party and the Indemnified Party or that either an shall, within the thirty (30) day period beginning on the date of receipt by the Indemnified Party or of such objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such Claims to which the Indemnifying Party has defenses that are not available to shall have so objected. If the other, such Indemnified Party and the Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (succeed in addition reaching agreement on their respective rights with respect to any local counsel) separate from of such Indemnifying Party's own counsel for all Claims, the Indemnified Parties in connection with any one action or separate but similar or related actions in Party and the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best promptly prepare and sign a memorandum setting forth such agreement (a “Memorandum of Agreement”). Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then the Indemnified Party shall be permitted to submit such dispute to an Arbitrator pursuant to Section 2.4. The party that receives a final judgment in such dispute shall be indemnified and held harmless for all reasonable efforts arbitration costs, attorney and consultant’s fees or expenses by the other party.
(c) Claims for Losses specified in any Indemnification Certificate to which an Indemnifying Party shall not object in writing within ten (10) Business Days of receipt of such Indemnification Certificate, claims of Losses covered by a Memorandum of Agreement and claims of Losses the light validity and amount of which shall have been the subject of a final arbitral determination, or shall have been settled with the consent of the then-prevailing circumstances to defend such claim; and Indemnifying Party, as described in Section 6.5, are hereinafter referred to, collectively, as “Agreed Claims.” Within ten (410) if Business Days of the determination of the amount of any Indemnified Party waives its right to indemnification hereunderAgreed Claims, the Indemnifying Party shall not be entitled pay to appoint counsel to represent such the Indemnified Party nor shall an amount equal to the Agreed Claim by wire transfer in immediately available funds to the bank account or accounts designated by the Indemnified Party in a notice to the Indemnifying Party reimburse such Indemnified Party for any costs of counsel not less than two (2) Business Days prior to such Indemnified Partypayment, subject in respect of any Buyer Indemnifiable Losses, to the Buyer’s rights under the Escrow Agreement and pursuant to Section 2.5(c).
Appears in 1 contract
Sources: Asset Purchase Agreement (Global Eagle Entertainment Inc.)
Indemnification Procedures. With respect (a) In the event an Indemnified Party becomes aware of a Claim against or incurred by it that the Indemnified Party reasonably believes is covered by the provisions of this Article XIV, written notice shall be given promptly by the Indemnified Party to any claim made or threatened against a party entitled the Indemnifying Party containing detail reasonably sufficient for the Indemnifying Party to indemnification under identify the nature and basis of the Claim. Provided that the Indemnifying Party admits in writing to the Indemnified Party within thirty (30) days after receipt of such notice (the “Indemnity Acceptance Date”) that the Indemnifying Party is responsible for indemnifying the Indemnified Party for such Claim in accordance with the provisions of this Section 9 Article XIV, the Indemnifying Party shall have the right to contest and defend by all appropriate legal proceedings such Claim and to control the contest and defense and all settlements of such Claim (an "Indemnified Party")provided, or compulsory process or request or other notice however, that the Indemnifying Party will not, without the prior written consent of any loss, claim, damage or liability served upon an the Indemnified Party, for which such Indemnified Party is enter into any settlement that would restrict or may be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify impose future conditions on the Indemnified Party under this Section 9 or its operations or would create an obligation or liability (other than for the "payment of money) on the Indemnified Party’s part) and to select lead counsel reasonably satisfactory to the Indemnified Party to defend any and all such Claims at the sole cost and expense of the Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure Indemnifying Party must conduct the defense of any the claim actively and diligently thereafter in order to preserve its rights in this regard. The Indemnified Party may select counsel to provide participate with the Indemnifying Party’s counsel in any such notice defense, in which event the Indemnified Party’s counsel shall be its own cost and expense; provided, however, that if the Indemnified Party shall have been advised in good faith in writing by its counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the Indemnifying Party, or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Claim, the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party and the Indemnified Party and the Indemnifying Party shall not relieve share control of the defense, compromise and/or settlement of such Claim. Further, if the Indemnifying Party of its obligations under this Section 9 except does not admit in writing to the extent Indemnified Party on or prior to the Indemnity Acceptance Date that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason responsible for indemnifying the Indemnified Party for such Claim in accordance with the provisions of this Article XIV, the Indemnified Party may assume the investigation and defense of such failure;
(ii) Claim, including employing legal counsel of its choice, at the expense of the Indemnifying Party’s expense; provided, provide however, that the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofwill not, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to enter into any settlement that would restrict or impose future conditions on the Indemnifying Party or its operations or would create any obligation or liability (other than for the right, in such payment of money) on the Indemnifying Party's sole discretion and at ’s part. In connection with any such Indemnifying Party's sole expenseClaim, to assume or the defense of such claim, including, without limitationor contesting thereof, the right to designate Parties shall reasonably cooperate with each other and their respective legal counsel and provide access to control all negotiations, litigation, arbitration, settlements, compromises relevant books and appeals of such claim; provided that, records in their possession.
(1b) if The Indemnified Party shall notify the Indemnifying Party assumes the defense and appeals in writing of such claim, any matter potentially indemnifiable under this Agreement as soon as reasonably practicable after the Indemnified Party must consent becomes aware of a potentially indemnifiable event; provided, however, that the failure to provide the notice in writing a timely manner shall not reduce the Indemnifying Party’s obligations except to the entry extent of any settlement, compromise, increase in the amount of the applicable Claim or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated material prejudice suffered by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and or the Indemnified Party or that either an as a result of such Indemnified Party or the Indemnifying Party has defenses that are not available Party’s failure to the other, such provide timely written notice.
(c) The Indemnifying Party shall pay to the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent all reasonable costs and expenses incurred by such Indemnified Party nor shall in the Indemnifying Party reimburse such Indemnified Party for any costs enforcement of counsel to such Indemnified Partythis Article XIV.
Appears in 1 contract
Sources: Refined Coal Supply Agreement
Indemnification Procedures. With respect to any claim made or threatened against Promptly after a party Party entitled to indemnification under this Section 9 6.5 or 6.6 (an "Indemnified Party"), or compulsory process or request or other “Indemnitee”) receives notice of any loss, claim, damage pending or liability served upon threatened claim against it (an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9“Action”), such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) Indemnitee will give written notice to the party required Party to indemnify whom the Indemnified Party under this Indemnitee is entitled to look for indemnification pursuant to Section 9 6.5 or 6.6, as applicable (the "“Indemnifying Party") of such claim within 10 days after such claim is made or threatened”), which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; providedcommencement thereof, however, provided that the failure so to notify the Indemnifying Party will not relieve it of any Indemnified liability that it may have to any Indemnitee hereunder, except to the extent the Indemnifying Party demonstrates that it is prejudiced thereby. In case any Action that is subject to provide such indemnification under this ARTICLE 6, will be brought against an Indemnitee and it will give written notice to the Indemnifying Party shall not relieve of the commencement thereof, the Indemnifying Party of its obligations under this Section 9 except will be entitled to participate therein and, if it so desires, to assume the extent that defense thereof with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense thereof, the Indemnifying Party will not be liable to such Indemnitee under this ARTICLE 6 for any fees of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof, other than reasonable costs of investigation. Notwithstanding an Indemnifying Party’s election to assume the defense of any such Action that is materially prejudiced or otherwise forfeits rights or defenses by reason subject to indemnification under this ARTICLE 6, the Indemnitee will have the right to employ separate counsel and to participate in the defense of such failure;
Action, and the Indemnifying Party will bear the reasonable fees, costs and expenses of such separate counsel if: (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnitee would present such counsel with a conflict of interest; (ii) at the expense of the Indemnifying Partyactual or potential defendants in, provide or targets of, any such Action include both the Indemnifying Party such information and cooperation with respect the Indemnitee, and the Indemnitee will have reasonably concluded that there may be legal defenses available to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel it which are different from or additional to those available to the Indemnifying Party at such reasonable times as (in which case the Indemnifying Party may request;
(iii) in will not have the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, right to assume the defense of such claim, including, without limitation, Action on the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claimIndemnitee’s behalf); provided that, (1iii) if the Indemnifying Party assumes will not have employed counsel satisfactory to the defense and appeals Indemnitee to represent the Indemnitee within a reasonable time after notice of the institution of such claim, Action; or (iv) the Indemnified Indemnifying Party must consent in writing will authorize the Indemnitee to employ separate counsel at the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party’s expense. If an Indemnifying Party assumes the defense of such claimAction, the Indemnifying Party shall not no compromise or settlement thereof may be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated effected by the Indemnifying Party has a conflict without the Indemnitee’s written consent, which consent will not be unreasonably withheld or delayed, unless (1) there is no finding or admission of interest due to the conflicting interests any violation of law or any violation of the Indemnifying rights of any other Party and no effect on any other claims that may be made against the Indemnified Party or Indemnitee and (2) the sole relief provided is monetary damages that either an Indemnified Party or are paid in full by the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 1 contract
Sources: Drug Development and License Option Agreement (Isis Pharmaceuticals Inc)
Indemnification Procedures. With respect to All claims for indemnification under this Article VI (“Claims”) shall be asserted and resolved as follows:
(a) In the event that any claim made or threatened against a party Person entitled to indemnification under this Section 9 hereunder (an "the “Indemnified Party"”) has a Claim against any Party obligated to provide indemnification pursuant to Section 6.1 or Section 6.2 (the “Indemnifying Party”) arising out of a Claim asserted against an Indemnified Party by a third party (a “Third Party Claim”), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such Indemnified Party the following provisions shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):apply:
(i) give written notice The Indemnified Party shall with reasonable promptness notify the Indemnifying Party in writing of such Third Party Claim, describing the Third Party Claim in reasonably detail and the amount or the estimated amount thereof to the party required to indemnify extent then feasible (which estimate shall not be conclusive of the final amount of such Third Party Claim) of the Damages that have been or may be sustained by the Indemnified Party under (the “Claim Notice”). The Indemnified Party’s failure to give reasonably prompt notice as required by this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure 6.5 of any Indemnified Third Party Claim which may give rise to provide such notice to the Indemnifying Party a right of indemnification hereunder shall not relieve the Indemnifying Party of its obligations under this Section 9 any liability which the Indemnifying Party may have to the Indemnified Party, except to the extent that the failure to give such notice materially and adversely prejudiced the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;Party.
(ii) at the expense of the Indemnifying PartyIf any Indemnified Party asserts a Claim involving a Third Party Claim, provide the Indemnifying Party such information and cooperation with respect to such claim as shall, within fifteen (15) calendar days from delivery of the Claim Notice (the “Notice Period”), notify the Indemnified Party whether or not the Indemnifying Party may reasonably requiredesires to defend against such Third Party Claim. If, includingand for so long as, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as notifies the Indemnified Party within the Notice Period that the Indemnifying Party may request;
(iii) in desires to defend the event suit is brought with respect to Indemnified Party against such claimThird Party Claim, upon reasonable prior noticethen except as hereinafter provided, afford to the such Indemnifying Party shall have the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense right to defend against nor release or settle any such claim or make any admission Third Party Claim by appropriate proceedings with respect thereto (other than routine or incontestable admissions or factual admissions the failure legal counsel reasonably acceptable to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent (such acceptance not to be unreasonably withheld, conditioned or delayed); provided, however, that, unless the Indemnified Party otherwise agrees in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent agreement shall not be unreasonably withheld, conditioned or delayed); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall may not be liable for settle any fees matter (in whole or in part) unless such settlement (I) includes a complete and expenses unconditional release of counsel for any the Indemnified Party incurred thereafter and its Affiliates in connection with such claim except thatrespect of the Third Party Claim, if such (II) involves no admission of wrongdoing by the Indemnified Party reasonably determines that counsel designated by or its Affiliates and (III) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or its Affiliates. If the Indemnified Party desires to participate in, but not control, any such defense or settlement the Indemnified Party may do so at its sole cost and expense. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Third Party Claim within a reasonable period of time or with reasonable diligence, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party has shall have the right to be informed and consulted with respect to the negotiation, settlement or defenses of such Third Party Claim.
(iii) If (A) the Indemnifying Party elects not to defend the Indemnified Party against such Third Party Claim, (B) fails to defend such claim within a conflict reasonable period of time or with reasonable diligence, or (C) the Indemnified Party advises that there are conflicts of interest due to that, based on advice of counsel, cause the conflicting interests joint representation of the Indemnifying Party and Indemnified Party by a single counsel to cause joint representation of the indemnifying and indemnified parts to be inappropriate under applicable standards of professional conduct, then the Indemnified Party or that either an Indemnified Party or Party, without waiving any rights against the Indemnifying Party has defenses that are not available to the otherParty, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out may assume control of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, defense of such Indemnifying Third Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; Claim and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not have the right to be entitled informed and consulted with respect to appoint counsel to represent the negotiation, settlement or defenses of such Third Party Claim. If the Indemnified Party is defending a Third Party Claim, such Indemnified Party nor shall may not settle any matter (in whole or in part) unless the Indemnifying Party reimburse such agrees in writing thereto (which agreement shall not be unreasonably withheld conditioned or delayed).
(b) For purposes of this Section 6.5, (i) if any or all Sellers comprise the Indemnifying Party, any references to the Indemnifying Party (except provisions relating to an obligation to make any payments) shall be deemed to refer to the Seller Representative, and (ii) if any or all Sellers comprise the Indemnified Party, any references to the Indemnified Party for (except provisions relating to an obligation to make or a right to receive any costs of counsel payments) shall be deemed to such Indemnified Partyrefer to the Seller Representative.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Verb Technology Company, Inc.)
Indemnification Procedures. With respect to any The party or parties making a claim made or threatened against a party entitled to for indemnification under Section 9.1, 9.2 or 9.3 shall be, for the purposes of this Section 9 (an Agreement, referred to as the "Indemnified Party"), " and the party or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Partyparties against whom such claims are asserted under this Article 9 shall be, for which such Indemnified Party is or may be entitled the purposes of this Agreement, referred to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of as the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the party required to indemnify the "Indemnifying Party." All claims by any Indemnified Party under this Section Article 9 shall be asserted and resolved as follows:
(a) In the event that (i) any claim, demand or Proceeding is asserted or instituted by any Person other than the parties to this Agreement or their Affiliates which could give rise to Damages for which an Indemnifying Party could be liable to an Indemnified Party under this Agreement (such claim, demand or Proceeding, a "Indemnifying PartyThird Party Claim") of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amountii) of the claim; provided, however, that the failure of any Indemnified Party under this Agreement shall have a claim to provide be indemnified by any Indemnifying Party under this Agreement which does not involve a Third Party Claim (such notice claim, a "Direct Claim"), the Indemnified Party shall with reasonable promptness send to the Indemnifying Party a written notice specifying the nature of such claim, demand or Proceeding and the amount or estimated amount thereof if known (which amount or estimated amount shall not relieve be conclusive of the final amount, if any, of such claim, demand or Proceeding) (a "Claim Notice").
(b) In the event of a Third Party Claim, the Indemnifying Party shall be entitled to appoint counsel of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) Party's choice at the expense of the Indemnifying Party, provide Party to represent the Indemnifying Indemnified Party such information and cooperation with respect to such claim as any others the Indemnifying Party may reasonably requiredesignate in connection with such claim, including, without limitation, making appropriate personnel available to demand or Proceeding (in which case the Indemnifying Party at 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 such reasonable times as counsel is reasonably acceptable to the Indemnified Party. Notwithstanding an Indemnifying Party's election to appoint counsel to represent an Indemnified Party in connection with a Third Party Claim, an Indemnified Party shall have the right to employ separate counsel, and the Indemnifying Party may request;
shall bear the reasonable fees, costs and expenses of such separate counsel if (iiii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to use of counsel chosen by the Indemnifying Party to represent the rightIndemnified Party would present such counsel with a conflict of interest or (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the institution of such Third Party Claim. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim, demand or Proceeding which the Indemnifying Party defends, or, if appropriate and related to the claim, demand or Proceeding in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person. No Third Party Claim may exercise in its sole discretion and at its expense, to participate in be settled or compromised (i) by the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); withheld or delayed or (2ii) if by the Indemnifying Party assumes without the defense prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed. In the event 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, each Indemnified Party shall be deemed to have waived all rights against the Indemnifying Party for indemnification under this Article 9 with respect to such claim, Third Party Claim.
(c) In the event of a Direct Claim the Indemnifying Party shall not be liable for any fees and expenses of counsel for any notify the Indemnified Party incurred thereafter within thirty (30) days Business Days of receipt of a Claim Notice whether or not the Indemnifying Party disputes such claim.
(d) From and after the delivery of a Claim Notice under this Agreement, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its representatives all reasonable access to the books, records and properties of such Indemnified Party to the extent reasonably related to the matters to which the Claim Notice relates. All such access shall be granted during normal business hours and shall be granted under conditions, which will not unreasonably interfere with the business and operations of such Indemnified Party. The Indemnifying Party will not, and shall require that its representatives do not, use (except in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party Claim Notice) or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition disclose to any local counsel) separate from such third person other than the Indemnifying Party's own counsel for all Indemnified Parties in connection with representatives (except as may be required by applicable Law) any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior information obtained pursuant to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partythis Section 9.5(d).
Appears in 1 contract
Sources: Asset and Capital Contribution Agreement (Cemex Sa De Cv)
Indemnification Procedures. With (a) In the event that any third-party judicial, administrative or arbitral action, suit, proceeding (public or private), claim or governmental proceeding (collectively, "Legal Proceedings") shall be instituted or any third-party claim or demand ("Claim") shall be asserted by any Person in respect of which payment may be sought under Article XI hereof, the Company Indemnified Party or Acquiror Indemnified Party, as the case may be (in either case referred to any claim made or threatened against a party entitled to indemnification under this Section 9 (herein generally as an "Indemnified Party"), or compulsory process or request or other shall promptly cause written notice of the assertion of any loss, claim, damage or liability served upon an Indemnified Party, for Claim of which such Indemnified Party it has knowledge which is or may covered by this indemnity to be entitled to indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice forwarded to the party required to indemnify from whom the Indemnified Party under this Section 9 Person seeks indemnity (the "Indemnifying Party"). The Indemnifying Party shall have the right, at its sole option and expense, to be represented by counsel of its choice, which counsel must be reasonably satisfactory to the Indemnified Party, and to assume the defense of, negotiate, settle or otherwise deal with any Claim which relates to any Losses indemnified against hereunder. If the Indemnifying Party elects to assume the defense of, negotiate, settle or otherwise deal with any Claim which relates to any Losses indemnified against hereunder, the Indemnifying Party shall within fifteen (15) Business Days of receipt of written notice of the assertion of a Claim notify the Indemnified Party of its intent to do so. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Claim which relates to any Losses indemnified against hereunder or fails to notify the Indemnified Party of its election as herein provided or contests its obligation to indemnify the Indemnified Party for such Losses under this Agreement, the Indemnified Party may defend against, negotiate, settle or otherwise deal with such Claim. In such event, if the Indemnified Party defends any Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable expenses of defending such Claim (including attorneys' fees) upon submission of periodic bills. If the Indemnifying Party shall assume the defense of any Claim, the Indemnified Party may participate, at his or its own expense, in the defense of such claim within 10 days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claimClaim; provided, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if, (i) so requested by the Indemnifying Party to participate or (ii) in the opinion of counsel to the Indemnifying Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation required. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Claim. No Indemnified Party shall have the right, without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld or delayed), to settle, compromise or consent to the entry of any judgment in any Claim in respect of which indemnification may be sought under Article XI hereof.
(b) The failure of any the Indemnified Party to provide such give reasonably prompt notice to of any Claim shall not release, waive or otherwise affect the Indemnifying Party shall not relieve the Indemnifying Party of its Party's obligations under this Section 9 with respect thereto except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason as a result of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 1 contract
Sources: Stock Exchange Agreement (Idt Corp)
Indemnification Procedures. With respect to any claim made or threatened against a third party entitled to claims, all claims for indemnification under this Article VII by any Indemnified Party hereunder shall be asserted and resolved as set forth in this Section 9 7.4. In the event that any written claim or demand for which an indemnifying party (an "Indemnified “Indemnifying Party"), or compulsory process or request or other notice of ”) would be liable to any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party hereunder is asserted against or may sought to be entitled to indemnification under this Section 9collected from any Indemnified Party by a third party, such Indemnified Party shall promptly, but in no event more than thirty (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause 30) days following such Indemnified Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") ’s receipt of such claim within 10 days after or demand, notify the Indemnifying Party in writing of such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim demand and the amount or the estimated amount thereof to the extent then feasible (or an which estimate shall not be conclusive of the amountfinal amount of such claim and demand) of (the claim“Claim Notice”); provided, however, that the any failure of any Indemnified Party to provide such notice to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 9 hereunder, except to the extent that such failure has had a prejudicial effect on the defenses or other rights available to the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as or demand. The Indemnifying Party shall have forty-five (45) days from the personal delivery or mailing of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (a) whether or not the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to disputes the liability of the Indemnifying Party at such reasonable times as to the Indemnifying Indemnified Party may request;
(iii) in the event suit is brought hereunder with respect to such claimclaim or demand and (b) whether or not it desires to defend the Indemnified Party against such claim or demand. Should (i) any Indemnifying Party assume or control any defense, upon reasonable prior noticeas aforesaid, afford and (ii) any one or more Indemnified Parties reasonably determine that there is or may be a conflict of interest between, or substantially different defenses for, the Indemnified Party and the Indemnifying Party, then such Indemnified Parties shall have the right to employ no more than one firm of attorneys (plus necessary local counsel) to represent their separate interests and such expenses shall be a liability of, and shall be paid by, the Indemnifying Party. All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, and shall be paid by, the rightIndemnifying Party. Except as hereinafter provided, which in the event that the Indemnifying Party may exercise in its notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole discretion power to direct and at its expense, control such defense. If any Indemnified Party desires to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified defense it may do so at its sole cost and expense. The Indemnifying Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereofshall not, in each case without the prior written consent of the Indemnifying Indemnified Party; and
(v) upon reasonable prior notice, afford settle, compromise or offer to settle or compromise any such claim or demand on a basis that would expressly admit wrongdoing or would not release the Indemnified Party from all Liabilities and obligations with respect to such claim or that would result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Subsidiary or affiliate thereof. If the Indemnifying Party elects not to defend the rightIndemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the portion of any such claim or demand as to which the defense by the Indemnified Party is unsuccessful (and all reasonable costs and expenses pertaining to such defense) shall be the liability of the Indemnifying Party hereunder. The Indemnified Party shall use its reasonable best efforts in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, all claims and demands that it defends. To the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if extent the Indemnifying Party assumes shall direct, control or participate in the defense and appeals or settlement of such claimany third party claim or demand, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of give the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with and obtain the testimony of the employees and counsel of the Indemnified Party and otherwise cooperate in the Indemnifying Party’s defense or settlement of the third party claim or demand; provided that either an Indemnified Party or the Indemnifying Party has defenses that are not available to will reimburse the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any its reasonable and documented out-of-pocket costs of counsel to and expenses arising from such Indemnified Partyaccess and cooperation.
Appears in 1 contract
Indemnification Procedures. With respect to any claim made or threatened against a party entitled to Claims for indemnification under this Agreement (other than claims involving a Tax Proceeding, the procedures for which are set forth in Article VII) shall be asserted and resolved as follows:
(a) If any Person who or which is entitled to seek indemnification under Section 9 9.2 (an "“Indemnified Party"), or compulsory process or request or other ”) receives notice of the assertion or commencement of any loss, claim, damage demand, action, suit or liability served upon an Indemnified Party, for which proceeding made or brought by any third party (a “Third Party Claim”) against such Indemnified Party with respect to which the Person against whom or which such indemnification is being sought (an “Indemnifying Party”) is obligated to provide indemnification under this Agreement, the Indemnified Party will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after receipt of such written notice of such Third Party Claim. Such notice by the Indemnified Party will describe the Third Party Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Losses that have been or may be entitled sustained by the Indemnified Party. The Indemnifying Party will have the right to indemnification under this Section 9participate in, such Indemnified Party shall (or with respect to Indemnified Parties that are directorsor, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give by giving written notice to the party required Indemnified Party, to indemnify assume, the defense of any Third Party Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel (reasonably satisfactory to the Indemnified Party), and the Indemnified Party under this Section 9 will cooperate in good faith in such defense.
(the "Indemnifying Party"b) of such claim If, within 10 days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 9.3(a), an Indemnified Party receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such claim is made or threatenedThird Party Claim as provided in the last sentence of Section 9.3(a), which notice shall specify the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in reasonable detail connection with the nature of the claim and the amount (or an estimate of the amount) of the claimdefense thereof; provided, however, that the failure of any Indemnified Party to provide such notice to (i) if the Indemnifying Party shall not relieve fails to take reasonable steps necessary to defend diligently such Third Party Claim within 10 days after receiving written notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party of its obligations under this Section 9 except has failed to the extent that take such steps or if the Indemnifying Party is materially prejudiced has not undertaken fully to indemnify the Indemnified Party in respect of all Losses relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or otherwise forfeits rights or defenses by reason of such failure;
incurred in connection therewith and (ii) at the expense Indemnified Party may employ separate counsel, and the Indemnifying Party will bear the expenses of such separate counsel, if in the written opinion of counsel to the Indemnified Party use of counsel of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect ’s choice would be expected to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available give rise to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement a conflict of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect thereof, in each case without interest. Without the prior written consent of the Indemnifying Indemnified Party; and
(v) upon reasonable prior notice, afford to the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must consent in writing to the entry of any settlement, compromise, or entry of judgment in respect thereof (which consent shall not be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall will not be liable for enter into any fees and expenses settlement of counsel for any Indemnified Third Party incurred thereafter in connection with such claim except thatClaim that would lead to loss, if such Indemnified Party reasonably determines that counsel designated by liability or create any financial or other obligation on the Indemnifying Party has a conflict part of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an for which the Indemnified Party or the Indemnifying Party has defenses that are is not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or does not include an unconditional release of all Indemnified Parties.
(c) Any claim by an Indemnified Party on account of Losses that do not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of Losses that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of five Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such five Business Day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in Section 9.3(a), 9.3(b) or 9.3(c) will not affect the rights or obligations of any party hereunder, except and only to the extent that, as a result of such failure, any party that was entitled to receive such notice was materially prejudiced as a result of such failure.
(e) Notwithstanding anything contained herein to the contrary, the amount of any Losses incurred or suffered by any Indemnified Person shall not be calculated after giving effect to (i) any insurance proceeds (net of any premiums paid or costs incurred in connection therewith) received by the Indemnified Person (or any of its Affiliates) with respect to such Losses, (ii) any net Tax Benefit actually and currently realized by the Indemnified Person (or any of its Affiliates) arising from the facts or circumstances giving rise to such Losses and (iii) any indemnification or reimbursement payments or other recoveries obtained by the Indemnified Person (or any of its Affiliates) from any other third party with respect to such Losses. Each Indemnified Person shall exercise Reasonable Efforts to obtain such proceeds, benefits, payments and recoveries. If any such proceeds, benefits, payments or recoveries are received by an Indemnified Person (or any of its Affiliates) with respect to any Losses after an Indemnifying Person has made a payment to the Indemnified Person with respect thereto, the Indemnified Person (or such Affiliate) shall pay to the Indemnifying Person the amount of such proceeds, benefits, payments or recoveries (up to the amount of the Indemnifying Person's payment). An indemnified party shall use reasonable efforts to mitigate damages in respect of any claim for which it is seeking indemnification.
(f) Upon making any payment to an Indemnified Person in respect of any Losses, the Indemnifying Person will, to the extent of such payment, be subrogated to all rights of the Indemnified Person (and its Affiliates) against any third party in respect of the Losses to which such payment relates. Such Indemnified Person (and its Affiliates) and Indemnifying Person will execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights.
(g) In the event an Indemnified Party shall recover Losses in respect of a claim of indemnification under this Article IX, no other Indemnified Party shall be entitled to appoint counsel to represent such Indemnified Party nor shall recover the Indemnifying Party reimburse such Indemnified Party same Losses in respect of a claim for any costs of counsel to such Indemnified Partyindemnification.
Appears in 1 contract
Indemnification Procedures. With respect Except to any claim made or threatened against a party entitled to the extent otherwise provided herein, all claims for indemnification under this Section 9 Agreement will be asserted and resolved as follows:
(an "Indemnified Party"), or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such a) An Indemnified Party is or may be entitled to claiming indemnification under this Section 9, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
Agreement will promptly (i) give written notice to notify the Indemnitor from whom indemnification is sought of any third party required to indemnify claim or claims ("Third Party Claim") asserted against the Indemnified Party which could give rise to a right of indemnification under this Section 9 Agreement and (ii) transmit to the Indemnitor a written notice ("Indemnifying PartyClaim Notice") of such claim within 10 days after such claim is made or threatened, which notice shall specify describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim and the amount (or if any), an estimate of the amount) amount of damages attributable to the Third Party Claim, if reasonably possible, and the basis of the claimIndemnified Party's request for indemnification under this Agreement. Within thirty (30) days after receipt of any Claim Notice (the "Election Period"), the Indemnitor will notify the Indemnified Party (i) whether the Indemnitor disputes its potential liability to the Indemnified Party under this Agreement with respect to such Third Party Claim and (ii) whether the Indemnitor desires to defend the Indemnified Party against such Third Party Claim.
(b) If the Indemnitor notifies the Indemnified Party within the Election Period that the Indemnitor does not dispute its potential liability to the Indemnified Party under this Agreement and that the Indemnitor elects to assume the defense of the Third Party Claim, then the Indemnitor will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted promptly and diligently by the Indemnitor to a final conclusion or settled at the discretion of the Indemnitor in accordance with this Section 11.4(b). Subject to the last sentence of this Section 11.4(b), the Indemnitor will have full control of such defense and proceedings, including any compromise or settlement thereof. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnitor (but only if the Indemnified 77 Party is ultimately determined to be actually entitled to indemnification hereunder with respect to such Third Party Claim or if the Indemnitor assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Party deems necessary or appropriate to protect its interests or those of the Indemnitor and which are not unnecessarily prejudicial to the Indemnitor. If requested by the Indemnitor, the Indemnified Party will, at the sole cost and expense of the Indemnitor, cooperate with the Indemnitor and its counsel in contesting any Third Party Claim which the Indemnitor elects to contest, including the making of any bona fide directly related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any Person. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnitor pursuant to this Section 11.4(b) and, except as permitted above or pursuant to Section 11.4(c), will bear its own costs and expenses with respect to such participation; provided, however, that if the failure of any Indemnified Party asserts that there exists a conflict of interest that would make it inappropriate for the same counsel to provide such notice to represent the Indemnifying Indemnitor, then the Indemnitor shall reimburse the Indemnified Party shall not relieve for the Indemnifying Party reasonable fees and expenses of its obligations under this Section 9 except separate counsel, to the extent that such fees and expenses are incurred solely in connection with the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation matters with respect to such claim as which there is a conflict of interest. Notwithstanding anything in this Section 11.4 to the Indemnifying Party may reasonably requirecontrary, includingthe Indemnitor will not, without limitationthe written consent of the Indemnified Party, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iiii) in the event settle or compromise any action, suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default proceeding or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect thereofof such action, suit or proceeding or (ii) settle or compromise any action, suit or proceeding in each case without any manner that (A) involves the prior written consent sale, forfeiture or loss of, or the creation of any Lien on, any property of such Indemnified Party, (B) involves an award which together with previous awards would exceed the available amount of the Indemnifying Party; andindemnity hereunder, or (C) involves equitable remedies against the Indemnified Party or any of its Affiliates.
(vc) upon reasonable prior notice, afford If the Indemnitor fails to notify the Indemnifying Indemnified Party within the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, Election Period that the Indemnitor elects to assume the defense of a Third Party Claim pursuant to Section 11.4(b), or if the Indemnitor elects to assume such defense pursuant to Section 11.4(b) but fails to diligently and promptly defend the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnitor, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and diligently prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party will have full control of such defense and proceedings; provided, however, that the Indemnified Party will not, without the Indemnitor's written consent, settle or compromise any action, suit or proceeding in any manner that (A) involves the sale, forfeiture or loss of, or the creation of any Lien on, any property of such Indemnitor or (B) involves equitable remedies against the Indemnitor or any of its Affiliates. Notwithstanding the foregoing, if the Indemnitor has delivered a written notice to the Indemnified Party to the effect that the Indemnitor disputes its potential liability to the Indemnified Party under this Agreement with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnitor, the Indemnitor will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 11.4(c) or of the Indemnitor's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnitor in full for all costs and expenses of such litigation. The Indemnitor may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.4(c), and the Indemnitor will bear its own costs and expenses with respect to such participation.
(d) If an Indemnified Party has a claim against an Indemnitor hereunder which does not involve a Third Party Claim, the Indemnified Party will transmit to the Indemnitor a written notice (the "Indemnity Notice") describing in reasonable detail the nature of the claim, an estimate of the amount of damages attributable to such claim, including, without limitation, and the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals basis of such claim; provided that, the Indemnified Party's request for indemnification under this Agreement. If the Indemnitor does not notify the Indemnified Party within sixty (160) if days from its receipt of the Indemnifying Party assumes Indemnity Notice that the defense and appeals of Indemnitor disputes such claim, the claim specified by the Indemnified Party must consent in writing the Indemnity Notice will be deemed a liability of the Indemnitor hereunder. If the Indemnitor has timely disputed such claim, as provided above, such dispute will be resolved by litigation in an appropriate court of competent jurisdiction.
(e) No Indemnitor will be obligated to make any payment of indemnity under this Agreement except pursuant to the entry procedures set forth in this Article 11. Payments of any settlement, compromise, or entry of judgment in respect thereof all amounts owing by the Indemnitor pursuant to Sections 11.4(b) and (which consent shall not c) will be unreasonably withheld); made within ten (210) days after (A) if the Indemnifying Indemnitor gives the notice contemplated by Section 11.4(a) stating that it does not dispute its liability hereunder or fails to give the notice contemplated by Section 11.4(a) within the Election Period, (i) the effective date of a settlement of the Third Party assumes Claim or (ii) the defense date an adjudication of such claimThird Party Claim becomes final and nonappealable, as the Indemnifying Party shall not be liable for any fees and expenses case may be, or (B) if the Indemnitor does give the notice contemplated by Section 11.4(a) that it disputes its liability hereunder, (i) the date an adjudication of counsel for any the Indemnitor's liability to the Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by under this Agreement becomes final and nonappealable or (ii) the Indemnifying Party has effective date of a conflict of interest due to settlement between the conflicting interests of the Indemnifying Party Indemnitor and the Indemnified Party or that either as to such liability, as the case may be. Payments of all amounts owing by the Indemnitor pursuant to Section 11.4(d) will be made within ten (10) days after (X) if the Indemnitor has disputed the relevant claim, (i) the date an adjudication of the Indemnitor's liability to the Indemnified Party under this Agreement becomes final and nonappealable or (ii) the Indemnifying effective date of a settlement between the Indemnitor and the Indemnified Party has defenses that are not available as to the otherIndemnitor's liability under this Agreement, such Indemnifying Party as the case may be, or (Y) if the relevant claim has not been disputed by the Indemnitor, the expiration of the sixty (60) day Indemnity Notice period.
(f) The failure by a party to give a notice required pursuant to this Section 11.4 shall pay not relieve the reasonable fees and disbursements other party or parties of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action its obligations under this Section 11.4 or separate but similar or related actions result in the same jurisdiction arising out loss of any rights of such party under this Section 11.4, except to the extent that such failure results in the failure of such other party or parties to receive actual notice of the same general allegations events or circumstances; (3) prior circumstances giving rise to entering into any final settlement such notice requirement and such other party or compromise, such Indemnifying Party shall use its best reasonable efforts in the light parties are damaged solely as a result of the then-prevailing circumstances failure of such party to defend give such claim; notice, and (4) if any Indemnified Party waives its right then only to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent extent of such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Partydamage.
Appears in 1 contract
Indemnification Procedures. With respect to any claim made The party or threatened against a party entitled to parties seeking indemnification under this Section 9 hereunder (each, an "“Indemnified Party")”) shall give the party or parties from whom indemnification is sought or to be sought (each, or compulsory process or request or other an “Indemnifying Party”) prompt written notice of any lossAdverse Consequences suffered by, claimaffecting or otherwise directed at it. If an indemnification claim involves a claim by a third party (a “Third Party Claim”), damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 9, such the Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, members, partners, agents or employees of promptly notify the Collateral Manager, the Collateral Manager shall cause such Indemnified Indemnifying Party to):
(i) give written notice to the party required to indemnify the Indemnified Party under this Section 9 (the "Indemnifying Party") of such claim within 10 days after such claim is made or threatenedthereof in writing, which notice shall specify include in reasonable detail the nature a description of the claim Third Party Claim and copies of all material written evidence thereof and shall indicate the amount (or an estimate estimated amount, if reasonably practical of the amount) of the claim; provided, howeversuch Adverse Consequences, that has been or may be sustained by the failure of any Indemnified Party. The Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice reasonably satisfactory to provide such notice to the Indemnified Party so long as the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) calendar days of its intention to assume the defense of any Third Party Claim at the Indemnifying Party's expense and by the Indemnifying Party's own counsel, and the Indemnified Party shall not relieve cooperate in good faith in such defense. If the Indemnifying Party elects not to compromise or defend such Third Party Claim or fails to promptly notify the Indemnified Party in writing of its obligations under election to defend as provided in this Section 9 except Agreement, the Indemnified Party may compromise, defend such Third Party Claim and seek indemnification for any and all Adverse Consequences based upon, arising from or relating to such Third Party Claim. Seller and Buyers shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the extent that defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim. So long as the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason conducting the defense of such failure;
the Third Party Claim in accordance with Section 8.3(b) above, (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (ii) at the expense of the Indemnifying Party, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, without limitation, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(iv) subject to clause (v) below, neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make of which would expose such Indemnified Party to unindemnified liability) nor permit a default or will not consent to the entry of any judgment in or enter into any settlement with respect thereof, in each case to the Third Party Claim without the prior written consent of the Indemnifying Party; and
Party (vnot to be unreasonably withheld) upon reasonable prior notice, afford to and (iii) the Indemnifying Party the right, in such Indemnifying Party's sole discretion and at such Indemnifying Party's sole expense, to assume the defense of such claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided that, (1) if the Indemnifying Party assumes the defense and appeals of such claim, the Indemnified Party must will not consent in writing to the entry of any settlement, compromise, judgment or entry enter into any settlement with respect to the Third Party Claim without the prior written consent of judgment in respect thereof the Indemnified Party (which consent shall not to be unreasonably withheld); (2) if the Indemnifying Party assumes the defense of such claim, the Indemnifying Party shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that, if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party or that either an Indemnified Party or the Indemnifying Party has defenses that are not available to the other, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from such Indemnifying Party's own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; (3) prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best reasonable efforts in the light of the then-prevailing circumstances to defend such claim; and (4) if any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
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