Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will be asserted and resolved as follows: (a) In the event of any Third Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim. (b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages). (c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party. (d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction. (e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Resource America Inc), Asset Purchase Agreement (Pacific Capital Bancorp /Ca/)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 10.01 will be asserted and resolved as follows:
(a) : In the event any claim or demand in respect of which an Indemnifying Party might seek indemnity under Section 10.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller, the Company, Purchaser or any Affiliate of any Seller or Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 10.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) . If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 10.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 10.01).
. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (c) i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 10.01 with respect to such Third Party Claim. If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 10.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
Indemnified Party (dwith the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 10.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 10.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (c) of competent jurisdiction.
(e) this Section 10.02. In the event any indemnified party has Indemnified Party should have a claim under Section 10.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 10.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with paragraph (c) of this Section 10.02. Any dispute submitted to arbitration pursuant to this Section 10.02 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the ICC (as defined in Section 13.12) upon application made to it for such purpose by the Indemnified Party. The Board of Arbitration shall meet in Hong Kong 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) calendar 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 (30) calendar 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 court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the member of the Board of Arbitration appointed by such party, provided, however, that the expenses and fees of the third member of the Board of Arbitration and any other expenses of the Board of Arbitration not capable of being attributed to any one member shall be borne in equal parts by the Indemnifying Party and the Indemnified Party.
Appears in 2 contracts
Sources: Share Purchase Agreement (Sun New Media Inc.), Share Purchase Agreement (Se Global Equities Corp)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under SECTION 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under SECTION 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller, Los Pueblos or any Affiliate of Seller or of Purchaser (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 11.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 11.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under SECTION 11.01 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this SECTION 11.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this SECTION 11.02(a)(i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 11.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to SECTION 11.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this SECTION 11.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 11.02(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this SECTION 11.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 11.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with SECTION 11.02(c).
(eb) In the event any indemnified party has Indemnified Party should have a claim under SECTION 11.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with SECTION 11.02(c).
(c) Any dispute submitted to arbitration pursuant to this SECTION 11.02 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "BOARD OF ARBITRATION") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) 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 (30) 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 court of competent jurisdiction. Each party to any arbitration shall bear its own expense 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 Party 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: Asset Purchase Agreement (Station Casinos Inc), Asset Purchase Agreement (Station Casinos Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 7.3 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which a Indemnified Party might seek indemnity under Section 7.3 is asserted against or sought to be collected from a Indemnifier by a Person other than the Purchaser or any Affiliate of the Purchaser (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party with reasonable promptness, enclosing a copy Indemnifier; provided that the failure to so notify the Indemnifier shall not relieve the Indemnifier of all papers served, if any, its obligations hereunder except to the extent (and specifying only to the nature of extent) that such failure shall have caused the Third damages for which the Indemnifier is obligated to be greater than such damages would have been had the Indemnified Party Claim, together with given the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”)Indemnifier prompt notice hereunder. The indemnifying party Indemnifier will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice the Dispute Period (the “Dispute Period”), as defined herein) whether the indemnifying party Indemnifier disputes its liability to the indemnified party and Indemnified Party under this Section 7.3 or whether the indemnifying party Indemnifier desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifier notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifier desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 7.4(a), then the indemnifying party Indemnifier will have the right to defend, defend with counsel selected by the Indemnifier who shall be reasonably satisfactory acceptable to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifier, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifier to a final conclusion or will be settled at conclusion; provided that the discretion of Indemnifier shall obtain the indemnifying party (but only with the prior written consent of the indemnified party Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned) before entering into any settlement of a claim or ceasing to defend such claim. If the Indemnifier assumes defense of a Third Party Claim, then such Indemnifier will have full control of such defense and proceedings, including (except as provided in the case of immediately preceding sentence) any settlement thereof; provided, however, that provides for the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any relief time prior to the Indemnifier’s delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests and not prejudicial to the Indemnifier; and provided, further, that the Indemnified Party may participate, at its own expense, in the defense of such Third Party Claim; and provided further, that if requested by the Indemnifier, the Indemnified Party will, at the sole cost and expense of the Indemnifier, cooperate with the Indemnifier and its counsel in contesting any Third Party Claim that the Indemnifier elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the payment Indemnified Party or any of monetary damagesits Affiliates). The Indemnified Party will be entitled to participate in any such defense with separate counsel at the expense of the Indemnifier if (i) so requested by the Indemnifier to participate, (ii) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying that would make such separate representation advisable or (iii) the Indemnified Party has defenses available to it that are not available to the Indemnifier.
(cii) If the indemnifying party an Indemnifier fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifier desires to defend the Third Party ClaimClaim pursuant to this Section 7.4(a), or if the indemnifying party an Indemnifier gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifier fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifier, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
Indemnified Party (dwith the consent of the Indemnifier, which consent will not be unreasonably withheld delayed or conditioned). If an Indemnified Party defends any Third Party Claim, then the Indemnifier shall be required to reimburse the Indemnified Party for the reasonable costs and expenses of defending such Third Party Claim within ten (10) If Business Days after the indemnifying party notifies date of receipt of any ▇▇▇▇. The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the indemnified party immediately preceding sentence) any settlement thereof; provided, however, that it does not dispute if requested by the Indemnified Party, the Indemnifier will, at the sole cost and expense of the Indemnifier, cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Loss in Company Indemnifier or any of its Affiliates). The Indemnifier may participate in, but not control, any defense or settlement controlled by the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnified Party pursuant to this clause (ii), and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed Indemnifier will bear its liability own costs and expenses with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionparticipation.
(eb) In the event any indemnified party has an Indemnified Party should have a claim under Section 7.3 against any indemnifying party Indemnifier that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifier. The Indemnifier shall notify the Indemnified Party within thirty (30) days following its receipt of such notice if the Indemnifier disputes its liability to the Indemnified Party under this Article 7. If the indemnifying party notifies the indemnified party that it Indemnifier does not dispute so notify the Indemnified Party, the claim described specified by the Indemnified Party in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will notice shall be conclusively deemed to be a liability of the indemnifying party Indemnifier under this Article 8, and the indemnifying party Indemnifier shall pay the amount of such Loss liability to the indemnified party Indemnified Party on demand. If , or, in the indemnifying party has timely disputed its liability with respect to case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such claim, later date when the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution amount of such dispute, and if not resolved through negotiations within a reasonable period claim (or such portion of time, such dispute shall be resolved by litigation in a court of competent jurisdictionthe claim) becomes finally determined.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Net 1 Ueps Technologies Inc), Common Stock Purchase Agreement (Net 1 Ueps Technologies Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Sections 5.21, 8.2, 8.4 and 8.5, subject to the provisions of Section 5.21 with respect to claims for indemnification related to Taxes, will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Sections 5.21, 8.2, 8.4 and 8.5, is asserted against or sought to be collected from such Indemnified Party by a Person other than Purchaser or any Affiliate of Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party Indemnifying Party shall deliver written notification thereof not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “to the extent that the Indemnifying Party demonstrates that its ability to defend such Third Party Claim Notice”)has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party will Indemnifying Party shall notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Sections 5.21, 8.2, 8.4 or 8.5, and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 8.3(a), then the indemnifying party will Indemnifying Party shall have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedingsProceedings, which proceedings Proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will may be settled at the discretion of the indemnifying party (but only with Indemnifying Party; provided, however, that the Indemnifying Party shall not be permitted to effect any settlement without the written consent of the indemnified party Indemnified Party unless (i) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party, (ii) such settlement involves no finding or admission of any violation or breach by any Indemnified Party of any right of any other Person or any Laws, Contracts, or Governmental Permits, and (iii) such settlement has no effect on any other claims that may be made against any Indemnified Party. The Indemnifying Party shall have full control of such defense and Proceedings, including any compromise or settlement thereof (except as provided in the case preceding sentence); provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (i) and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement that provides for of a Third Party Claim at any relief other than time if it irrevocably waives its right to indemnity under Sections 5.21, 8.2, 8.4 or 8.5, as the payment of monetary damages)case may be, with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 8.3(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedingsProceedings, which proceedings Proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). Subject to the immediately preceding sentence, the Indemnified Party will have full control of such defense and Proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified Indemnified party with respect to a Third Party Claim under Sections 5.21, 8.2, 8.4 or 8.5, as the case may be, or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Sections 5.21, 8.2, 8.4 or 8.5, as the case may be, and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and Indemnified Party will dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under Sections 5.21, 8.2, 8.4 or 8.5 against any Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Sections 5.21, 8.2, 8.4 or 8.5 and the indemnified party Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(ec) In the event of any indemnified party has Loss resulting from a misrepresentation or breach of warranty contained in this Agreement as to which an Indemnified Party would be entitled to claim against any indemnifying party indemnity under Sections 5.21, 8.2(a), 8.2(b), 8.4 or 8.5 but for the provisions of Section 8.2(c)(ii), such Indemnified Party may nevertheless deliver a written notice to the Indemnifying Party containing the information that does not involve a Third Party Claim, the indemnified party shall deliver would be required in a Claim Notice or an Indemnity Notice, as applicable, with reasonable promptness respect to the indemnifying partysuch Loss. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Notice therein or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Claim Notice or Indemnity Notice, as the case may be, the Loss in the amount specified in the Claim Notice notice will be conclusively deemed a liability to have been incurred by the Indemnified Party for purposes of making the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demanddetermination set forth in Section 8.2(c)(ii). If the indemnifying party Indemnifying Party has timely disputed its liability with respect to the claim described in such claimClaim Notice or Indemnity Notice, as the case may be, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdictionjurisdiction or such other methods as the parties may agree to in writing.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 8.2 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 8.2 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 8.2 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 8.2(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 8.1 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 8.2(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 8.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following its final determination. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 11.11.
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 8.1 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following its final determination. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with Section 11.11.
(c) The amount which an Indemnifying Party is required to pay to, for, or on behalf of any other party pursuant to this Article VIII shall be reduced (including, without limitation, retroactively) by any insurance proceeds actually recovered (after making a court good faith effort for such recovery) by or on behalf of competent jurisdictionsuch Indemnified Party and other amounts paid by any other person in reduction of the related indemnifiable loss (the "Indemnifiable Loss"). Amounts required to be paid, as so reduced, are hereafter sometimes called an "Indemnity Payment." If an Indemnified Party shall have received or shall have paid on its behalf an Indemnity Payment in respect of an Indemnifiable Loss and shall subsequently receive directly or indirectly insurance proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall promptly pay to the Indemnifying Party a sum equal to the amount of such insurance proceeds or other amounts provided the same does not exceed an amount equal to the payment actually made by the Indemnifying Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Qad Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of any which an Indemnified Party might seek indemnity under Section 9.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than a Purchaser Indemnified Party or Seller Indemnified 29 Party (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Escrow Agent and the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the respect to such Third Party Claim, together with but only to the amount or, if not then reasonably ascertainable, extent that the estimated amount, determined in good faith, Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Third Party Claim (a “Claim Notice”)Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Escrow Agent and the Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 9.02 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Escrow Agent and the Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 9.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably, vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of Section 9.03). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time subsequent to the delivery of a Claim Notice to the Indemnified Party and prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 9.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest; and provided, further, that the Indemnified Party may choose separate counsel at the sole cost and expense of the Indemnified Party in the event that a conflict of interest arises between the Indemnified Party and the Indemnifying Party. 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 9.02(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 9.02 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify assume the indemnified party defense of the Third Party Claim within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute reasonably, vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 9.02(a)(ii), if the Indemnifying Party has notified the Escrow Agent and the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 9.02(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Escrow Agent and the Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party ClaimClaim under Section 9.02, or if the Indemnifying Party fails to deliver a notice to the Escrow Agent and the Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.02 and the indemnifying party Escrow Agent or the Indemnifying Party (as applicable) shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdictionjurisdiction in accordance with Section 9.10.
(eb) In the event any indemnified party Indemnified Party has a claim under Section 9.02 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Escrow Agent and the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Escrow Agent and the Indemnified Party that it does not dispute the claim described in such Claim Notice Indemnity Notice, or if the Indemnifying Party fails to notify deliver a notice to the indemnified party Escrow Agent and the Indemnified Party within the Dispute Period whether the indemnifying party disputes the claimPeriod, then the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.Indemnifying Party under
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under this ARTICLE X will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this ARTICLE X is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Third Party ClaimAffiliate of Seller or of Purchaser (a "THIRD PARTY CLAIM"), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”)Indemnifying Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under this ARTICLE X and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 10.06(A), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof and shall keep the Indemnified Party informed of all material developments relating to such proceedings; PROVIDED, HOWEVER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under this ARTICLE X with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails Claim pursuant to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute PeriodSECTION 10.06(a), then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnifying Party or any of its Affiliates). Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under this ARTICLE X or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Adverse Consequences arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article X and the indemnifying party Indemnifying Party shall pay the amount of such Loss Adverse Consequences to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eiv) Notwithstanding any other provision of this SECTION 10.06(a) to the contrary, Purchaser shall have the right to defend all Third Party Claims covered by SECTION 10.04, by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by Purchaser to a final conclusion or will be settled at the discretion of Purchaser (but only with the consent of Seller, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief involving Seller other than the payment of monetary damages). Purchaser will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof, and shall keep Seller informed of all material developments relating to such proceedings. Seller may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by Purchaser pursuant to this SECTION 10.06(a)(iv) and Seller will bear its own costs and expenses with respect to such counsel.
(b) In the event any indemnified party has Indemnified Party should have a claim under this ARTICLE X against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifying Party. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in Adverse Consequences arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this ARTICLE X and the indemnifying party Indemnifying Party shall pay the amount of such Loss Adverse Consequences to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) In the event of any claim for indemnity under this ARTICLE X, each party agrees to give reasonable access to its Books and Records and employees in connection with the matters for which indemnification is sought to the extent a party reasonably deems necessary in connection with its rights and obligations under this ARTICLE X.
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Method of Asserting Claims. All claims for indemnification by any indemnified As used herein, an “Indemnified Party” shall refer to a Parent Indemnified Party or Holder Indemnified Party, as applicable, and the “Indemnifying Party” shall refer to the party hereunder will be asserted and resolved as follows:or parties hereto obligated to indemnify such Indemnified Party.
(a) In the event that any Indemnified Party is made a defendant in or party to any action or proceeding, judicial or administrative, instituted by any third party for the liability or the costs or expenses of which are Losses (any such third party action or proceeding being referred to as a “Claim”), the Indemnified Party shall give the Indemnifying Party prompt notice thereof. The failure to give such notice shall not affect any Indemnified Party’s ability to seek reimbursement unless such failure has materially damaged or prejudiced the Indemnifying Party’s ability to defend successfully a Claim. The Indemnifying Party shall be entitled to contest and defend such Claim; provided, that the Indemnifying Party (i) has a reasonable basis for concluding that such defense may be successful and (ii) can diligently contest and defend such Claim. Notice of the intention to so contest and defend shall be given by the Indemnifying Party to the Indemnified Party within 20 business days after the Indemnified Party’s notice of such Claim (but, in all events, at least five business days prior to the date that an answer to such Claim is due to be filed). Such contest and defense shall be conducted by reputable attorneys retained by the Indemnifying Party. The Indemnified Party shall be entitled at any time, at its own cost and expense (which expense shall not constitute a Loss unless the Indemnified Party reasonably determines that the Indemnifying Party is not adequately representing or, because of a conflict of interest, may not adequately represent, any interests of any Third Indemnified Party, and only to the extent that such expenses are reasonable), to participate in such contest and defense and to be represented by reputable attorneys of its or their own choosing. If the Indemnified Party elects to participate in such defense, the Indemnified Party shall cooperate with the Indemnifying Party to the extent reasonably requested by the Indemnifying Party in the contest and defense of such Claim, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Indemnified Party if relevant to the defense of such Claim; provided that, such cooperation shall not unduly disrupt the operations of the business of the Indemnified Party or cause the Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any trade secret or confidential information of such Indemnified Party to become public. Neither the Indemnified Party nor the Indemnifying Party may concede, settle or compromise any Claim without the consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Claim seeks the issue of an injunction, the specific election of an obligation or similar remedy, or (ii) if the subject matter of a Claim relates to the ongoing business of any of the Indemnified Parties, which Claim, if decided against any of the Indemnified Parties, would materially adversely affect the ongoing business or reputation of any of the Indemnified Parties, then, in each such case, the Indemnified Parties alone shall be entitled to contest, defend and settle such Claim in the first instance and, if the Indemnified Parties do not contest, defend or settle such Claim, the indemnified party Indemnifying Party shall deliver written notification thereof then have the right to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, contest and specifying the nature of the Third Party Claim, together with the amount or, if defend (but not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against settle) such Third Party Claim.
(b) In the event any Indemnified Party should have a claim against the Indemnifying Party that does not involve a Claim, the Indemnified Party shall deliver a notice of such claim with reasonable promptness to the Indemnifying Party or, if holders of the Company Capital Stock and Qualified Warrants immediately prior to the Effective Time are the Indemnifying Party, to the Stockholders’ Representative. If the indemnifying party Indemnifying Party notifies the indemnified party within the Dispute Period Indemnified Party that the indemnifying party desires to defend Indemnifying Party does not dispute the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, claim described in such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion notice or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party Indemnified Party in writing within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives 20 business days after delivery of such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party Indemnified Party whether the Indemnifying Party disputes the claim described in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claimsuch notice, the Loss in the amount specified in the Claim Notice Indemnified Party’s notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party, and the indemnifying party Indemnifying Party shall pay (subject to the Basket Amount, to the extent applicable), the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Stockholders’ Representative and the indemnified party an authorized officer of Parent will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through the negotiations of such individuals within a reasonable period 20 business days after the delivery of timethe Indemnifying Party’s notice that it disputes such claim, such dispute shall be resolved fully and finally in Minneapolis, Minnesota, by litigation an arbitrator selected pursuant to and an arbitration governed by Commercial Arbitration Rules of the American Arbitration Association, as modified herein. The parties will jointly appoint a mutually acceptable independent arbitrator, seeking assistance in a such regard from the American Arbitration Association. The arbitrator shall resolve the dispute based on the governing law, without regard to its rules of evidence, and judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(e) In . Each of Parent, on the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claimone hand, and Stockholders’ Representative, on the indemnified party other, shall deliver a Claim Notice bear its own fees and expenses in connection with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability arbitration and shall bear 50% of the indemnifying party fees and expenses of the indemnifying party arbitrator. Stockholders’ Representative shall pay be entitled to deduct the amount of such Loss its fees and expenses incurred in connection with pursuing or defending Claims pursuant to this Article IX from the indemnified party on demand. If income received in respect of the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionEscrow Fund.
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Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.01 will be asserted and resolved as follows:
(a) : In the event any claim or demand in respect of which an Indemnified Party might seek indemnity or reimbursement under Section 9.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller, Purchaser or any Affiliate of Seller or Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 9.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) . If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 9.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of Section 9.03).
(c) . The Indemnifying Party will have control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 9.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 9.02(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it waives its right to indemnity under Section 9.01 with respect to such Third Party Claim. If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 9.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
Indemnified Party (dwith the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 9.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 9.02(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 9.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.01 and the indemnifying party Escrow Agent or Indemnifying Party (as applicable) shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) . In the event any indemnified party has Indemnified Party should have a claim under Section 9.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.01 and the indemnifying party Escrow Agent of the Indemnifying Party (as applicable) shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a reasonable period court of timecompetent jurisdiction. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described therein or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Loss specified in the notice will be conclusively deemed to have been incurred by the Indemnified Party. If the Indemnifying Party has timely disputed the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
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Method of Asserting Claims. All claims for indemnification by any indemnified party entitled to indemnification hereunder will (an "Indemnified Party") shall be asserted and resolved as follows:
set forth in this Section 10.4. Any Indemnified Party seeking indemnity shall notify the party from whom indemnification is sought (the "Indemnifying Party") promptly, but in no event later than the 20th day after receipt by the Indemnified Party of a Third Party claim or demand of such claim or demand and the amount or the estimated amount thereof to the extent then feasible; provided, however, that any failure to provide such notice shall not constitute a waiver of the Indemnifying Party's indemnity obligations hereunder except to the extent the Indemnifying Party is actually materially prejudiced thereby. The Indemnifying Party shall have 30 days after receipt of a demand for indemnification (the "Notice Period") to notify the Indemnified Party (a) In whether or not the event Indemnifying Party disputes the liability of any Third the Indemnifying Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party Indemnified Party hereunder with reasonable promptness, enclosing a copy of all papers served, if any, respect to such claim or demand and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party whether or not it desires to defend the indemnified party with respect Indemnified Party against such claim or demand. . In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Third Indemnified Party Claimagainst such claim or demand, then the indemnifying party will Indemnifying Party shall have the right to defend, defend the Indemnified Party at the Indemnifying Party's sole cost and expense and with counsel reasonably satisfactory to the indemnified partyIndemnified Party. If the Indemnifying Party's right to assume the defense is exercised, at the sole cost and expense Indemnifying Party shall be deemed to have waived all rights to contest its liability to the Indemnified Party in respect of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by claim. The Indemnifying Party shall not settle or compromise or consent to the indemnifying party entry of any judgment with respect to a final conclusion or will be settled at any Third Party claim that it elects to defend without the discretion of the indemnifying party (but only with the prior written consent of the indemnified party Indemnified Party, which consent shall not be unreasonably withheld. If the right to assume and control the defense is exercised, the Indemnified Party shall have the right to participate in, but not control, such defense at its own expense and the Indemnifying Party's indemnity obligations shall be deemed not to include attorneys' fees and litigation expenses incurred in such participation by the Indemnified Party after the assumption of the defense by the Indemnifying Party in accordance with the terms hereof; provided, however, that the Indemnified Party shall be entitled to employ one firm or separate counsel to represent the Indemnified Party if, in the case written opinion of counsel to the Indemnified Party, a conflict of interest between the Indemnified Party and the Indemnifying Party exists in respect of such claim or, in any settlement that provides event, for any claims seeking equitable relief other than from the payment Indemnified Party and in each such event, the fees, costs and expenses of monetary damages).
(c) such firm or separate counsel shall be paid in full by the Indemnifying Party. If the indemnifying party fails Indemnifying Party has not elected to notify assume the indemnified party defense of a Third Party claim within the Dispute Period Notice Period, the Indemnified Party may defend and settle the claim for the account and cost of the Indemnifying Party; provided, that the indemnifying party desires to defend the Third Indemnified Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or will not settle the Third Party Claimclaim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnifying Party upon demand will pay, or if reimburse the indemnifying party fails Indemnified Party for payment of, all costs and expenses (including reasonable fees and expenses of counsel) incurred in the defense thereof. The Indemnified Party shall cooperate with the Indemnifying Party and, subject to give any notice whatsoever within obtaining proper assurances of confidentiality and privilege, shall make available to the Dispute Period, then Indemnifying Party all pertinent information under the indemnified party will have the right to defend, at the sole cost and expense control of the indemnifying party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. The party making a claim under this Article VIII is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article VIII is referred to as the "Indemnifying Party". All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article VIII shall be asserted and resolved as follows:
(a) In the event Whenever an Indemnified Party becomes aware of any Third a claim for which an Indemnifying Party Claimwould be liable to an Indemnified Party hereunder, the indemnified party Indemnified Party shall deliver written notification with reasonable promptness notify in writing the Indemnifying Party of such claim, identifying the representation or warranty on which such claim is based, the basis for such claim or demand, and the amount or the estimated amount thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature extent then determinable (which estimate shall not be conclusive of the Third Party Claim, together with final amount of such claim and demand; the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “"Claim Notice”"). The indemnifying party will notify the indemnified party as soon as practicable; provided, but in that any case within 30 days of receipt of failure to give a Claim Notice (will not be deemed a waiver of any rights of the “Dispute Period”), whether the indemnifying party disputes its liability Indemnified Party except to the indemnified party extent the rights of the Indemnifying Party are actually prejudiced by such failure. If the basis of such claim is a claim or demand by a third party, the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party) to represent the Indemnified Party and whether shall pay the indemnifying party desiresreasonable fees and disbursements of such counsel with regard thereto; provided, at its sole cost and expensethat any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to defend retain counsel, whose fees and expenses shall be at the indemnified expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party. The Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (a) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (b) representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by either party against without the prior written consent of the other party (which consent will not be unreasonably withheld) unless, as part of such Third settlement, the Indemnified Party Claimshall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party.
(b) If After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article VIII, the indemnifying party notifies affected parties each agree to retain all Books and Records related to such Claim Notice. In each instance, the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Indemnified Party Claim, then the indemnifying party will shall have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted kept fully informed by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Indemnifying Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the Third Party Claim, party providing such information or documents and which is not otherwise generally available to the Loss in public and not already within the amount specified in the Claim Notice will be conclusively deemed a liability knowledge of the indemnifying party and to whom the indemnifying party shall pay information is provided (unless otherwise covered by the amount confidentiality provisions of such Loss to any other agreement among the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claimparties hereto, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution or any of such disputethem), and if except as may be required by applicable law, shall not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
disclosed to any third person (e) In except for the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability representatives of the indemnifying party and being provided with the indemnifying information, in which event the party being provided with the information shall pay the amount of request its representatives not to disclose any such Loss information which it otherwise required hereunder to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionkept confidential).
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article IX shall be asserted and resolved as follows:
(a) In the event THIRD PARTY CLAIMS. If any claim or demand in respect of any which an Indemnified Party might seek indemnity under this Article IX is asserted against such Indemnified Party by a Person (a "THIRD PARTY CLAIM") other than Trek or Watsco (it being understood that claims of Affiliates of Trek and Watsco shall not be considered Third Party ClaimClaims), the indemnified party Indemnified Party shall deliver give written notification notice and the details thereof including copies of all relevant pleadings, documents and information and (if then known) the amount or the method of computation of the amount of such claim (collectively a "THIRD PARTY CLAIM NOTICE") to the indemnifying party with reasonable promptness, enclosing Indemnifying Party within a copy period of all papers served, if any, and specifying thirty (30) days following the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, assertion of the Third Party Claim against the Indemnified Party (the "THIRD PARTY CLAIM NOTICE PERIOD"), PROVIDED, that a “Third Party Claim Notice”)Notice in respect of any action at law or suit in equity by or against a third person as to which indemnification will be sought shall be given as promptly as practicable after the action or suit is commenced. If the Indemnified Party fails to provide the Third Party Claim Notice within the Third Party Claim Notice Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 a period of thirty (30) days of after its receipt of a the Third Party Claim Notice by the Indemnifying Party (the “Dispute Period”), whether "THIRD PARTY CLAIM RESPONSE PERIOD"):
(i) Whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party and Indemnified Party under this Article IX with respect to such Third Party Claim; and
(ii) whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) . If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Third Party Claim Response Period that the indemnifying party Indemnifying Party desires to defend the indemnified party with respect to Indemnified Party against the Third Party Claim, then the indemnifying party will have the right to Indemnifying Party at its sole cost and expense shall defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled or, at the discretion of the indemnifying party Indemnifying Party, will be paid, compromised, or settled (but only with the consent of the indemnified party Indemnified Party which shall not be unreasonably withheld or delayed). The Indemnified Party will cooperate in such defense at the sole cost and expense of the Indemnifying Party and shall furnish records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. The Indemnified Party may, at its sole cost and expense, at any time prior to the Indemnifying Party's delivery of the notice referred to in the case last sentence of the preceding paragraph, file any pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests. The Indemnified Party, at its expense, may participate in, but not control, any defense or settlement of any settlement that provides for any relief other than Third Party Claim conducted by the payment of monetary damagesIndemnifying Party pursuant to this Section 9.4(a).
(c) . If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Third Party Claim Response Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, Claim or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to Indemnified Party shall defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith and will not be paid, compromised or will be settled at (without the discretion consent of the indemnified party.
(dIndemnifying Party which shall not be unreasonably withheld or delayed). The Indemnifying Party shall, at its sole cost and expense, cooperate in such defense and shall furnish records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. Notwithstanding the foregoing provisions of this paragraph, if the Indemnifying Party is determined not to be liable for such Third Party Claim pursuant to the last paragraph of this Section 9.4(a) and Section 9.4(c), the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense or the Indemnifying Party's participation therein pursuant to this paragraph, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such defense. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under this Article IX or fails to notify the Indemnified Party within the Third Party Claim Response Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in actual Losses of the amount specified in the Claim Notice Indemnified Party as finally determined will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article IX, and the indemnifying party Indemnifying Party shall pay the amount of such Loss Losses to the indemnified party Indemnified Party on demand. If the indemnifying party has timely disputed Indemnifying Party notifies the Indemnified Party within the Third Party Claim Response Period that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethirty (30) days from the date of such notice, either party may require that such dispute shall be resolved by litigation arbitration in a court of competent jurisdiction.
(eaccordance with Section 9.4(c) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness hereof. Notwithstanding anything in Section 9.4(a) to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claimcontrary, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to the matters subject to indemnification under Section 9.2(a)(ii), (i) no Third Party Claims Notice need be given by Watsco, and (ii) Watsco shall control the negotiations and any defense of such claim, the indemnifying party matters in a reasonable manner and the indemnified party will proceed in good faith to negotiate a resolution of such disputefaith, and if shall not resolved through negotiations within a reasonable period pay, compromise or settle any such matter without the prior written consent of timeTrek (which shall not be unreasonably withheld or delayed), it being understood that costs and expenses incurred by Watsco related to such dispute matters shall be resolved by litigation in a court of competent jurisdictionLosses for which Watsco shall be entitled to indemnification under Section 9.2(a)(ii), subject to Section 9.6.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will Indemnified Party under Section 10.01 shall be asserted and resolved only as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 10.01 or as to which Seller's Threshold may be applied is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party and in any event within 30 days of the time such Indemnified Party learns of such claim or demand. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been actually prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 10.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration, in accordance with Section 10.02(c).
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 10.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at Indemnifying Party. The Indemnifying Party shall not, without the discretion of the indemnifying party (but only with the prior written consent of the indemnified party in the case of Indemnified Party, consent to any settlement that provides (i) does not contain an unconditional release of the Indemnified Party from the subject matter of the settlement, or (ii) 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 Company. The Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 10.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests without such actions being construed as a waiver of the Indemnified Party's EXECUTION COPY rights to defense and indemnification pursuant to the Agreement. If requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section (a)(i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any relief other than Third Party Claim the payment defense of monetary damages)which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 10.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 10.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party without in any way waiving or otherwise affecting the Indemnified Party's rights to indemnification pursuant to this Agreement. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 10.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section and the indemnifying party Indemnifying Party shall pay the amount of such Loss (subject to the indemnified party Seller's Threshold and the Cap, if applicable) to the Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through EXECUTION COPY negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 10.02(c).
(b) In the event any Indemnified Party has a claim under Section 10.01 or as to which Seller's Threshold may be applied against any Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to the Indemnifying Party and in any event within 30 days of the time such Indemnified Party learns of such claim. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been actually prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 10.01 and the Indemnifying Party shall pay the amount of such Loss (subject to the Seller's Threshold and the Cap, if applicable) to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration, in a court of competent jurisdictionaccordance with Section 10.02(c).
(ec) In All disputes between the event parties arising under this Article X shall be finally resolved by binding arbitration in Indianapolis, Indiana before a single arbitrator, unless either party elects to have such dispute resolved before a panel of three arbitrators, appointed pursuant to the rules of the American Arbitration Association (the "AAA") then in effect applicable to commercial disputes. Arbitration may be commenced at any indemnified time by any party hereto giving written notice to the other party to a dispute that such dispute has a claim against any indemnifying party that does been referred to arbitration under this Section 10.02(c). The arbitrator(s) shall be selected by the joint agreement of Seller and Purchaser, but if they do not involve a Third Party Claimso agree within twenty (20) days after the date of the notice referred to above, the indemnified party selection shall deliver a Claim Notice with reasonable promptness be made pursuant to the indemnifying partyrules and from the panels of arbitrators maintained by the AAA. If Any award rendered by the indemnifying party notifies arbitrator(s) shall be conclusive and binding upon the indemnified party that it does not dispute parties hereto and may be enforced in accordance with the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability laws of the indemnifying party and State of Indiana; provided, however, that any such award shall be accompanied by a written opinion of the indemnifying arbitrator(s) giving the reasons for the award. Each party shall pay its own expenses of arbitration and the amount expenses of the arbitrator(s) shall be equally shared; provided, however, that if in the opinion of the arbitrator(s) any claim for indemnification or any defense or objection thereto was unreasonable, the arbitrator(s) may assess, as part of his or her award, all or any part of the arbitration expenses of the other party (including reasonable attorneys' fees) and of the arbitrator(s) against the party raising such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such unreasonable claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictiondefense or objection.
Appears in 1 contract
Sources: Stock Purchase Agreement (Majestic Star Casino LLC)
Method of Asserting Claims. All ------------------------------ -------------------------- claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article X shall be asserted and resolved in writing as follows:
: (a) a In the event that any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, said Indemnified Party shall, within twenty (20) days of any Third such claim or demand being made, notify the Indemnifying Party Claimof such claim or demand, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with and specific basis for such claim or demand and the amount or, if not then reasonably ascertainable, or the estimated amount, determined in good faith, of amount thereof to the Third Party Claim extent then feasible (a “the "Claim Notice”"). The indemnifying party will estimate of Loss contained in the Claim Notice shall not limit the amount of the Indemnifying Party's ultimate liability under the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such claim or demand if the Indemnified Party fails to notify the indemnified party as soon as practicable, but Indemnifying Party thereof in any case accordance with the provisions of this Agreement within said twenty (20) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of receipt of a the Claim Notice (the “Dispute "Notice Period”), ") to notify the Indemnified Party (i) whether or not the indemnifying party disputes its liability of the Indemnifying Party to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Indemnified Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Third Indemnifying Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified partydesires, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third claim or demand; provided, however, that any Indemnified Party Claim is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. 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, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings will shall be vigorously and diligently promptly settled or prosecuted by the indemnifying party it to a final conclusion conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or will be settled settlement it may do so at its sole cost and expense. If requested by the discretion of Indemnifying Party, the indemnifying party (but only Indemnified Party agrees to cooperate with the consent of Indemnifying Party and its counsel in contesting any claim or demand which the indemnified 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 in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claimclaim or demand, or if the indemnifying party gives any cross complaint against any person but in any such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, case at the sole cost and expense of the indemnifying Indemnifying Party. No claim may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party. (b In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Third Indemnified Party shall send a Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party Notice with respect to such claim to the Third Indemnifying Party. If the Indemnifying Party Claimdoes not notify the Indemnified Party within the Notice Period that it disputes such claim, the Loss in the amount specified in the Claim Notice will of such claim shall be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demandIndemnifying Party hereunder. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timeas provided above, such dispute shall be resolved by litigation arbitration as provided in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying partyArticle 13.11. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.10.4
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article IX shall be asserted and resolved as follows:
(a) In the event THIRD PARTY CLAIMS. If any claim or demand in respect of any which an Indemnified Party might seek indemnity under this Article IX is asserted against such Indemnified Party by a Person (a "THIRD PARTY CLAIM") other than ICP or A&C (it being understood that claims of Affiliates of ICP and A&C shall not be considered Third Party ClaimClaims), the indemnified party Indemnified Party shall deliver give written notification notice and the details thereof including copies of all relevant pleadings, documents and information (collectively a "THIRD PARTY CLAIM NOTICE") to the indemnifying party with reasonable promptness, enclosing Indemnifying Party within a copy period of all papers served, if any, and specifying thirty (30) days following the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, assertion of the Third Party Claim against the Indemnified Party (a “Claim Notice”the "THIRD PARTY CLAIM NOTICE PERIOD"). If the Indemnified Party fails to provide the Third Party Claim Notice within the Third Party Claim Notice Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 a period of thirty (30) days of after its receipt of a the Third Party Claim Notice by the Indemnifying Party (the “Dispute Period”), whether "THIRD PARTY CLAIM RESPONSE PERIOD"):
(i) Whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party and Indemnified Party under this Article IX with respect to such Third Party Claim; and
(ii) whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) . If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Third Party Claim Response Period that the indemnifying party Indemnifying Party desires to defend the indemnified party with respect to Indemnified Party against the Third Party Claim, then the indemnifying party will have the right to Indemnifying Party at its sole cost and expense shall defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party which shall not be unreasonably withheld or delayed). The Indemnified Party will cooperate in such defense at the sole cost and expense of the Indemnifying Party. The Indemnified Party may, at its sole cost and expense, at any time prior to the Indemnifying Party's delivery of the notice referred to in the case last sentence of the preceding paragraph, file any pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests. The Indemnified Party, at its expense, may participate in, but not control, any defense or settlement of any settlement that provides for any relief other than Third Party Claim conducted by the payment of monetary damagesIndemnifying Party pursuant to this Section 9.4(a).
(c) . If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Third Party Claim Response Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, Claim or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to Indemnified Party shall defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
Indemnified Party (dwith the consent of the Indemnifying Party which shall not be unreasonably withheld or delayed). The Indemnifying Party shall, at its sole cost and expense, cooperate in such defense. Notwithstanding the foregoing provisions of this paragraph, if the Indemnifying Party is determined not to be liable for such Third Party Claim pursuant to the last paragraph of this Section 9.4(a) and Section 9.4(c), the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense or the Indemnifying Party's participation therein pursuant to this paragraph, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such defense. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under this Article IX or fails to notify the Indemnified Party within the Third Party Claim Response Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice actual Losses as finally determined will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article IX, and the indemnifying party Indemnifying Party shall pay the amount of such Loss Losses to the indemnified party Indemnified Party on demand. If the indemnifying party has timely disputed Indemnifying Party notifies the Indemnified Party within the Third Party Claim Response Period that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethirty (30) days from the date of such notice, such dispute shall be resolved by litigation arbitration in a court accordance with Section 9.4(c) hereof. Notwithstanding the foregoing, ICP and A&C agree that following Closing A&C shall control the defense and settlement of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim matter described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionSection 9.2(c).
Appears in 1 contract
Method of Asserting Claims. All claims Claims for indemnification by any indemnified party hereunder Indemnified Party under Section 7.1 must be made within the survival periods set forth in Article VI and will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 7.1 is asserted against or sought to be collected from such Indemnified Party by a Person other than the Seller, the Buyer, the Company or any Affiliate of the Seller, the Buyer or the Company (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party is prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party accepts or disputes its liability to the indemnified party Indemnified Party under Section 7.1 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 7.2, then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently reasonably prosecuted or defended by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in its sole discretion in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages with respect to which the Indemnified Party will be obligated or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 7.1). Subject to the foregoing, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the cost and expense of the Indemnifying Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 7.2(a)(i) after giving reasonable notice to the Indemnifying Party, file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED, FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 7.2 and, except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 7.1 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, or if the indemnifying party Indemnifying Party gives such notice but any time thereafter fails to reasonably prosecute vigorously and diligently or defend or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all reasonably appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the reasonable discretion of the indemnified partyIndemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 7.2 or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.2, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute accepts its indemnification liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 7.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified identified in the Claim Notice Notice, as finally determined, will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 7.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party has Indemnifying Party timely disputed disputes its liability with respect to such claimThird Party Claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 7.1 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure or delay by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party is prejudiced by such failure or delay. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss indemnified in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 7.1 to the extent that the costs incurred by the Indemnified Party in connection with such claims are commercially reasonable and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such disputedispute and, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.1 will be asserted and resolved as follows:
(a) In order for an Indemnified Party to be entitled to any indemnification provided for under Section 9.1 in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the event of any Third Indemnified Party Claim(a "THIRD PARTY CLAIM"), the indemnified party shall Indemnified Party must deliver written notification thereof a Claim Notice to the indemnifying party with reasonable promptness, enclosing a copy Indemnifying Party within ten (10) Business Days after receipt by such Indemnified Party of all papers served, if any, and specifying the nature written notice of the Third Party Claim; PROVIDED, together with the amount orHOWEVER, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a that failure to give such Claim Notice (shall not affect the “Dispute Period”), whether the indemnifying party disputes its liability indemnification provided hereunder except to the indemnified party and whether extent the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against Indemnifying Party shall have been actually prejudiced as a result of such Third Party Claimfailure.
(b) If a Third Party Claim is made against an Indemnified Party, the indemnifying party notifies Indemnifying Party shall be entitled to participate in the indemnified party within defense thereof and, if it so chooses, to assume the Dispute Period that defense thereof with counsel selected by the indemnifying party desires to defend the indemnified party with respect Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost Indemnifying Party shall not be
(i) constitutes a complete and expense unconditional discharge and release of the indemnifying partyIndemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that ii) provides for any no relief other than the payment of monetary damages)damages and such monetary damages are paid in full by the Indemnifying Party.
(c) If In the indemnifying party fails to notify the indemnified party within the Dispute Period event any Indemnified Party shall have a claim under Section 9.1 against any Indemnifying Party that the indemnifying party desires to defend the does not involve a Third Party Claim, or if the indemnifying party gives such notice but fails Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to prosecute vigorously and diligently or settle the Third Indemnifying Party. The failure by any Indemnified Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then Indemnity Notice shall not impair such party's rights hereunder except to the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying party, the Third extent that an Indemnifying Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) demonstrates that it has been materially prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability the claim described in such Indemnity Notice or fails to notify the indemnified party with respect to Indemnified Party within the Third Dispute Period whether the Indemnifying Party Claimdisputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Unit Purchase Agreement (Universal Broadband Networks Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under this Section 14 will be asserted and resolved as follows:
(ai) In If any claim or demand in respect of which an Indemnified Party might seek indemnity under this Section 14 is asserted against or sought to be collected from such Indemnified Party by a person or entity other than Contributor, Acquiror or any Affiliate of the event Contributor or Acquiror (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice (as defined below) with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of any such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice the Dispute Period (the “Dispute Period”), as defined below) whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under this Section 14 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(ba) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 14C(i), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Section 14). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (a), may file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party, at the sole cost and expense of the Indemnifying Party, will provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (a), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Section 14 with respect to such Third Party Claim.
(cb) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 14C(i), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (b), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (c) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (b) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (b), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(dc) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under this Section 14 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Section 14 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (iii) of competent jurisdiction.this Section 14C.
(eii) In the event If any indemnified party has Indemnified Party should have a claim under this Section 14C against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice (as defined below) with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Section 14 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with paragraph (iii) of this Section 14C.
(iii) Any dispute submitted to arbitration pursuant to this Section 14C shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for such purpose by the Indemnified Party. The Board of Arbitration shall meet in New York City, New York 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) calendar 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 (30) calendar 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 court of competent jurisdiction.. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the member of the Board of Arbitration appointed by such party, provided, however, that the expenses and fees of the third member of the Board of Arbitration and any other expenses of the Board of Arbitration not capable of being attributed to any one member shall be borne in equal parts by the Indemnifying Party and the Indemnified Party. For purposes of this Section 14, the following terms shall have the meanings ascribed to them below:
Appears in 1 contract
Sources: Contribution Agreement (American Real Estate Investment Corp)
Method of Asserting Claims. The party making a claim under this Article VIII is referred to as the "INDEMNIFIED PARTY" and the party against whom such claims are asserted under this Article VIII is referred to as the "INDEMNIFYING PARTY". All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article VIII shall be asserted and resolved as follows:
(a) In the event Whenever an Indemnified Party becomes aware of any Third a claim for which an Indemnifying Party Claimwould be liable to an Indemnified Party hereunder, the indemnified party Indemnified Party shall deliver written notification with reasonable promptness notify in writing the Indemnifying Party of such claim, identifying the representation or warranty on which such claim is based, the basis for such claim or demand, and the amount or the estimated amount thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature extent then determinable (which estimate shall not be conclusive of the Third Party Claimfinal amount of such claim and demand; the "CLAIM NOTICE"); PROVIDED, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in that any case within 30 days of receipt of failure to give a Claim Notice (will not be deemed a waiver of any rights of the “Dispute Period”), whether the indemnifying party disputes its liability Indemnified Party except to the indemnified party extent the rights of the Indemnifying Party are actually prejudiced by such failure. If the basis of such claim is a claim or demand by a third party, the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party) to represent the Indemnified Party and whether shall pay the indemnifying party desiresreasonable fees and disbursements of such counsel with regard thereto; PROVIDED, at its sole cost and expensethat any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to defend retain counsel, whose fees and expenses shall be at the indemnified expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand, which the Indemnifying Party defends. Neither party against may settle a claim or demand without the prior written consent of the other party (which consent will not be unreasonably withheld) unless, as part of such Third settlement, the Indemnified Party Claimshall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party.
(b) If Whenever any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party Indemnified Party shall send a Claim Notice with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory such claim to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages)Indemnifying Party.
(c) If After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article VIII, the indemnifying party fails affected parties each agree to notify retain all Books and Records related to such Claim Notice. In each instance, the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Indemnified Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted kept fully informed by the indemnified party in a reasonable manner Indemnifying Party and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the Third Party Claim, party providing such information or documents and which is not otherwise generally available to the Loss in public and not already within the amount specified in the Claim Notice will be conclusively deemed a liability knowledge of the indemnifying party and to whom the indemnifying party shall pay information is provided (unless otherwise covered by the amount confidentiality provisions of such Loss to any other agreement among the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claimparties hereto, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution or any of such disputethem), and if except as may be required by applicable law, shall not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
disclosed to any third person (e) In except for the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability representatives of the indemnifying party and being provided with the indemnifying information, in which event the party being provided with the information shall pay the amount of request its representatives not to disclose any such Loss information which it otherwise required hereunder to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionkept confidential).
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Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than the Company or any Affiliate of the Company or of a Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 9.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 9.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under Section 9.01 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 9.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 9.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified party.
Indemnified Party (dwith the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) If any settlement thereof; provided, however, that if requested by the indemnifying party notifies Indemnified Party, the indemnified party Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that it does not dispute the Indemnifying Party disputes its liability hereunder to the indemnified party with respect to the Third Indemnified Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claimThird Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the indemnifying party Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the indemnified party Indemnified Party will proceed reimburse the Indemnifying Party in good faith to negotiate a resolution of such dispute, full for all reasonable costs and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved expenses incurred by litigation the Indemnifying Party in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice connection with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.such
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 10.1 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnifying Party might seek indemnity under SECTION 10.1 is asserted against or sought to be collected from such Indemnified Party by a Person other than the Company, the Purchaser, Parent or any Affiliate of the Company, the Purchaser or Parent (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 10.1 and whether the indemnifying party Indemnifying Party desires, other than in connection with a Third Party Claim involving Taxes, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 10.2(a)(i), then the indemnifying party Indemnifying Party will have the right to defend, other than in connection with a Third Party Claim involving Taxes, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to SECTION 10.1). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this SECTION 10.2(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 10.2(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under SECTION 10.1 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to SECTION 10.2(a)(i), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute PeriodPeriod or if the Third Party Claim involves Taxes, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not 33 be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions this SECTION 10.2(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 10.2(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable Costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this SECTION 10.2(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 10.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 10.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under SECTION 10.1 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights, hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 10.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a 34 resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) An Indemnified Party shall be entitled to set off against payments such Indemnified Party owes to an Indemnifying Party (including payments owed under this Agreement), the sum of all obligations that such Indemnified Party is entitled to from the indemnifying Party pursuant to this Article X ARTICLE XI
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Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnitee under this Section 11.2 will be asserted and resolved as follows:
(a) In the event any Claim in respect of which an Indemnitee might seek indemnity under Section 11.1 is asserted against or sought to be collected from such Indemnitee by a Person other than Sellers or any Third Party ClaimAffiliate of the Sellers (a "THIRD PARTY CLAIM"), the indemnified party Indemnitee shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability with reasonable promptness to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) Sellers' Representative. If the indemnifying party Sellers' Representative notifies the indemnified party Indemnitee within the Dispute Period that the indemnifying party desires Sellers desire to defend the indemnified party Indemnitee with respect to the Third Party ClaimClaim pursuant to this Section 11.2(a), and confirms their liability with respect thereto, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Sellers will have the right to defend, at the sole cost and expense of Sellers, such Third Party Claim by all appropriate proceedings, which will be vigorously and diligently prosecuted by Sellers, with counsel reasonably acceptable to Indemnitee, to a final conclusion or will be settled at the indemnifying partydiscretion of Sellers (subject to the limitations set forth below). From and after Sellers' Representative's delivery of the notice referred to in the first sentence of this Section 11.2(a), Sellers will have full control of such defense and proceedings, including any settlement thereof; provided, that Sellers may not settle or compromise any Third Party Claim in any manner that results in any continuing liability or obligation for Indemnitee or any admission of liability or wrongdoing by Indemnitee, without, in any such case, the prior written consent of Indemnitee, which will not be unreasonably withheld. If requested by Sellers' Representative, Indemnitee will, at Indemnitee's sole cost and expense, cooperate with Sellers and their counsel in contesting any Third Party Claim that Sellers elect to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross- 50 11/19/03 STEAMBOAT II & III SALE AND PURCHASE AGREEMENT complaint against any Person (other than the Indemnitee or any of its Affiliates). Notwithstanding the foregoing, Indemnitee may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 11.1 with respect to such Third Party Claim. Should Sellers have interests that diverge materially from those of Indemnitee, Indemnitee shall have the right to request separate counsel from that representing Sellers, the expenses of such separate representation to be paid by Sellers.
(i) If Sellers' Representative fails to notify Indemnitee within the Dispute Period that Sellers desire to defend the Third Party Claim pursuant to Section 11.2(a), or if Sellers' Representative gives such notice but Sellers fail to prosecute vigorously and diligently or settle the Third Party Claim, then Indemnitee will have the right to defend, at Sellers' sole cost and expense, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in Indemnitee to a reasonable manner and in good faith final conclusion or will be settled at the discretion of Indemnitee (with Sellers' Representative's consent, which will not be unreasonably withheld or delayed). Indemnitee will have full control of such defense and proceedings, including (except as provided in the indemnified partyimmediately preceding sentence) any settlement thereof; provided, that if requested by Indemnitee, Sellers will, at the sole cost and expense of Sellers, cooperate with Indemnitee and its counsel in contesting any Third Party Claim which Indemnitee is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than Indemnitee or any of its Affiliates).
(dii) If the indemnifying party Sellers' Representative notifies the indemnified party Indemnitee that it does Sellers do not dispute its their liability to the indemnified party Indemnitee with respect to the Third Party Claim under Section 11.1 or fails to notify Indemnitee within the Dispute Period whether Sellers dispute their liability to Indemnitee with respect to such Third Party Claim, the Loss in the amount specified in the Damages arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Sellers under Section 11.1, and the indemnifying party Sellers shall pay the amount of such Loss Damages to Indemnitee on demand following the indemnified party on demandfinal determination thereof. If the indemnifying party has Sellers have timely disputed its their liability with respect to such claimClaim, the indemnifying party Sellers and the indemnified party Indemnitee will proceed in good faith to negotiate a resolution of such disputeDispute, and if the Dispute is not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute Indemnitee shall be resolved by litigation in a court of competent jurisdictionentitled to seek such remedies against Sellers as may then be available to it under this Agreement and applicable Laws.
(eb) In the event any indemnified party has Indemnitee should have a claim Claim under Section 11.1 against any indemnifying party Sellers that does not involve a Third Party Claim, the indemnified party Indemnitee shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partySellers' Representative. If the indemnifying party Sellers' Representative notifies the indemnified party Indemnitee that it does not dispute the claim Claim or the amount of Loss therefrom described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnitee within the Dispute Period whether that Sellers dispute the indemnifying party disputes Claim described in the claimIndemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Sellers under Section 11.1, and the indemnifying party Sellers shall pay the amount of such Loss to the indemnified party Indemnitee on demand. If the indemnifying party has timely Sellers have disputed its their liability with or the amount of the Loss respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timeClaim, such dispute Dispute shall be resolved by litigation in a court accordance with the provisions of competent jurisdiction.Article 12 hereof. STEAMBOAT II & III SALE AND PURCHASE AGREEMENT
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder under Section 10.02 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an indemnifying party might seek indemnity under this Article X is asserted against or sought to be collected from such indemnified party by a Person other than CCA, ANTS, API 2 or any Third Party ClaimAffiliate thereof (a "THIRD PARTY CLAIM"), the indemnified party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party. If the indemnified party fails to provide the Claim Notice with reasonable promptness, enclosing a copy promptness after the indemnified party receives notice of all papers served, if any, and specifying the nature of the such Third Party Claim, together the indemnifying party will not be obligated to indemnify the indemnified party with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the indemnifying party's ability to defend has been irreparably prejudiced by such failure of the indemnified party. The indemnifying party will notify the indemnified party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party disputes its liability to the indemnified party under this Article X and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(bi) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party ClaimClaim pursuant to this Section 10.04(a), then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the indemnified party will not be indemnified in full pursuant to this Article X). The indemnifying party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the indemnified party may, at the sole cost and expense of the indemnified party, at any time prior to the indemnifying party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the indemnified party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the indemnifying party, the indemnified party will, at the sole cost and expense of the indemnifying party, provide reasonable cooperation to the indemnifying party in contesting any Third Party Claim that the indemnifying party elects to contest. 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 clause (i), and except as provided in the preceding sentence, the indemnified party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the indemnified party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article X with respect to such Third Party Claim.
(cii) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party ClaimClaim pursuant to Section 10.04(a), or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party. The indemnified party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the indemnified party, the indemnifying party will, at the sole cost and expense of the indemnifying party, provide reasonable cooperation to the indemnified party and its counsel in contesting any Third Party Claim which the indemnified party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the indemnifying party has notified the indemnified party within the Dispute Period that the indemnifying party disputes its liability hereunder to the indemnified party with respect to such Third Party Claim and if such dispute is resolved in favor of the indemnifying party in the manner provided in clause (iii) below, the indemnifying party will not be required to bear the costs and expenses of the indemnified party's defense pursuant to this clause (ii) or of the indemnifying party's participation therein at the indemnified party's request, and the indemnified party will reimburse the indemnifying party in full for all reasonable costs and expenses incurred by the indemnifying party in connection with such litigation. The indemnifying party may participate in, but not control, any defense or settlement controlled by the indemnified party pursuant to this clause (ii), and the indemnifying party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim under Article X or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes its liability to the indemnified party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party under this Article X and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has should have a claim under this Article X against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying party. The failure by any indemnified party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an indemnifying party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party under this Article X and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) In the event of any Loss resulting from a misrepresentation, breach of warranty or nonfulfillment or failure to be performed of any covenant or agreement contained in this Agreement as to which an indemnified party would be entitled to claim indemnity under Section 10.02 but for the provisions of paragraph (c) thereof, such indemnified party may nevertheless deliver a written notice to the indemnifying party containing the information that would be required in a Claim Notice or an Indemnity Notice, as applicable, with respect to such Loss. If the indemnifying party notifies the indemnified party that it does not dispute the claim described therein or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Loss specified in the notice will be conclusively deemed to have been incurred by the indemnified party for purposes of making the determination set forth in paragraph (c) of Section 10.02. If the indemnifying party has timely disputed the claim described in such Claim Notice or Indemnity Notice, as the case may be, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Stock Purchase Agreement (Corrections Corp of America/Md)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under SECTION 10.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under SECTION 10.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Sellers or any Affiliates of Sellers or of Purchasers (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 10.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party notifies Party nofifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 10.02(A), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld in the case of any settlement as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under SECTION 10.01 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that provides the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 10.02(a)(i), file any motion, answer or other pleadings or take any other action that is reasonably necessary or appropriate to protect the Indemnified Party's interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this SECTION 10.02(A)(I), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any relief other than Third Party Claim the payment defense of monetary damages)which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 10.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to SECTION 10.02(A), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this SECTION 10.02(A)(II), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 10.02(A)(II) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will bear all costs and expenses and reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this SECTION 10.02(A)(II), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 10.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 10.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under SECTION 10.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. Subject to SECTION 9.01, the failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 10.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party 50 Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Purchase Agreement (Pioneer Standard Electronics Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.1 will be asserted and resolved as follows:
: (a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.1 is asserted against or sought to be collected from such Indemnified Party by a Person other than a Seller or any Affiliate of a Seller or of Buyer (a “Third Party Claim”), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 9.1 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 9.2(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that 62 the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 9.1 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 9.2(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute defend vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying 63 Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this clause (ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 9.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdictionjurisdiction in accordance with Section 11.15.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by -------------------------- any indemnified party hereunder Indemnified Party under Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Cyprus, Cyprus Gold, Magadan, Omolon, Amax Gold or any Affiliate of Cyprus or Amax Gold (a "Third Party Claim"), the Indemnified Party shall deliver a Claim ----------------- Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying party, Indemnifying Party such Third Party Claim by all appropriate proceedings, which proceedings . Settlement of such Third Party Claim will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of Section 11.01(c)). If requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails Claim pursuant to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute PeriodSection 11.02(a), then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings. The Indemnifying Party may participate in, which proceedings will be prosecuted but not control, any defense or settlement controlled by the indemnified party Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. If the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in a reasonable manner favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and in good faith expenses of the Indemnified Party's defense pursuant to this clause (ii) or will be settled of the Indemnifying Party's participation therein at the discretion of Indemnified Party's request, and the indemnified partyIndemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such dispute.
(db) If In the indemnifying party notifies the indemnified party event any Indemnified Party should have a claim under Section 11.01 against any Indemnifying Party that it does not dispute its liability to the indemnified party with respect to the involve a Third Party Claim, the Loss in the amount specified in the Claim Indemnified Party shall deliver an Indemnity Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss with reasonable promptness to the indemnified party on demandIndemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party has timely disputed within the Dispute Period notified the Indemnified Party that the Indemnifying Party disputes its liability with respect to such claim, the indemnifying party chief executive officers of Amax Gold and Cyprus (or other executive officers appointed by them) shall meet for the indemnified party will proceed purpose of proceeding in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period 60 days following receipt by Indemnified Party of timesuch notice, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (c) of competent jurisdictionthis Section 11.02.
(ec) Any dispute submitted to arbitration pursuant to this Article XI shall be determined in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, by a panel of three (3) arbitrators selected in accordance with said Commercial Arbitration Rules (the "Board of Arbitration"). In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claimof conflict between the provisions of this Agreement and the provisions of said Commercial Arbitration Rules, the indemnified party provisions of this Agreement shall deliver prevail. Any questions of whether a Claim Notice with reasonable promptness to dispute should be arbitrated under this Article XI shall be decided by the indemnifying partyBoard of Arbitration. If the indemnifying party notifies the indemnified party that it does not dispute the claim described The Board of Arbitration shall meet in Denver, Colorado or such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed other place as a liability majority of the indemnifying party 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 indemnifying party shall pay members of the amount Board of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Arbitration) with respect to such claimthe amount, if any, which the indemnifying party and Indemnifying Party is required to pay to the indemnified party will proceed Indemnified Party in good faith to negotiate respect of a resolution claim filed by the Indemnified Party. To the extent practical, decisions of such dispute, and if not resolved through negotiations within a reasonable period the Board of time, such dispute Arbitration shall be resolved rendered no more than thirty (30) days following commencement of proceedings with respect thereto. Each party may pursue any method of discovery permitted by litigation in a court the Federal Rules of competent jurisdiction.Civil Procedure, notwithstanding Rule 81(a)(3)
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Amax Gold Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Sellers or any Affiliate of Sellers or of Purchaser (a “Third Party Claim”), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 11.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.03(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under Section 11.01 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 11.03(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party (subject to any limitations or caps provided for in this Article XI), the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof (subject to any limitations or caps provided for in this Article XI); provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party (subject to any limitations or caps provided for in this Article XI), provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim (subject to any limitations or caps provided for in the amount specified in the Claim Notice this Article XI) will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss (subject to any limitations or caps provided for in this Article XI) to the indemnified party Indemnified Party on demanddemand following the final determination thereof (and any remaining portion of such Loss beyond any applicable cap provided for in this Article XI shall be the responsibility of the Indemnified Party). If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 11.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice (subject to any limitations or caps provided for in this Article XI) will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss (subject to any limitations or caps provided for in this Article XI) to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.1 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller Purchaser or any Affiliate of Seller or Purchaser (a "Third Party Claim"), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness, enclosing promptness after the Indemnified Party has knowledge that a copy of all papers served, if any, and specifying third party intends to assert a claim against the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainableIndemnified Party, the estimated amount, determined in good faith, of Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been actually prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 9.1 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 9.2(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously actively and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 9.1). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 9.2(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 9.2(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 9.1 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 9.2(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously actively and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 9.2(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 9.2(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will promptly reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.2(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 9.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdictioncompetent.
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 9.1 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been actually prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) In the event of any Loss resulting from a misrepresentation or breach of warranty as to which an Indemnified Party would be entitled to claim indemnity under Section 9.1 but for the provisions of Section 9.1(c), such Indemnified Party shall nevertheless deliver a written notice to the Indemnifying Party containing the information that would be required in a Claim Notice or an Indemnity Notice, as applicable, with respect to such Loss. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described therein or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Loss specified in the notice will be conclusively deemed to have been incurred by the Indemnified Party for purposes of making the determination set forth in Section 9.1(c). If the Indemnifying Party has timely disputed the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(d) Except in the case of fraud or intentional breaches of this Agreement, the remedies provided in this Article 9 shall be exclusive and shall preclude the assertion by any party hereto of any other rights, or the seeking by such party of any other remedies against any other party hereto, in respect of any Loss of such party that is covered by the indemnification obligations of any other party hereto under Section 9.1; PROVIDED, HOWEVER, that nothing in this Section 9.2(c) shall preclude any party hereto from seeking the specific performance by any other party hereto of any of such other party's obligations hereunder.
(e) Each Indemnified Party will use its commercially reasonable efforts to collect insurance proceeds to which it is entitled under applicable insurance policies in respect of any Loss as to which such Indemnified Party is seeking indemnification under this Article 9.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will entitled to indemnification under SECTION 9.1 (each an "INDEMNIFIED PARTY") against any party potentially obligated to indemnify such Indemnified Party in respect of such claim (each an "INDEMNIFYING PARTY") shall be asserted and resolved as follows:in the manner provided in this Section 9.2 and in the Escrow Agreement. For purposes of this Section, in all instances where the Indemnifying Party is a Stockholder, the Stockholder Representative, acting in accordance with the provisions of the Escrow Agreement and the Investor Representation Letters, shall have the exclusive right, power and authority, in the name and on behalf of the Stockholder, to make any and all decisions and take any and all actions required or permitted to be taken by the Stockholder pursuant to this Section.
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under SECTION 9.1 is asserted against or sought to be collected from such Indemnified Party by a Person other than a Stockholder, Parent, Merger Sub or any Affiliate of a Stockholder or Parent (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party (and, if the claim is to be made against the Stockholders, the Stockholder Representative). If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 9.1 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 9.2(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this SECTION 9.2(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 9.2(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under SECTION 9.1 with respect to such Third Party Claim.
(cii) If the indemnifying party fails to notify Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party desires Indemnifying Party does not desire to defend the Third Party ClaimClaim pursuant to this SECTION 9.2(a), or if the indemnifying party Indemnifying Party gives such notice that it desires to defend but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this SECTION 9.2(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 9.2(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this SECTION 9.2(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 9.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 9.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with the terms of competent jurisdictionARTICLE XII.
(eb) In the event any indemnified party has Indemnified Party should have a claim under SECTION 9.1 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party (and, if the claim is to be made against the Stockholders, the Stockholder Representative). The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 9.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with the terms of competent jurisdictionARTICLE XII.
Appears in 1 contract
Sources: Merger Agreement (Adam Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 8.2 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnifying Party might seek indemnity under Section 8.2 is asserted against or sought to be collected from such Indemnified Party by a Person other than the Company Shareholders or the Indemnifying Officer, Parent or any Affiliate of any Company Shareholders, Indemnifying Officer or Parent (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 7.2 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) If In the indemnifying party notifies the indemnified party within the Dispute Period event any Indemnified Party should have a claim under Section 8.2 against any Indemnifying Party that the indemnifying party desires to defend the indemnified party with respect to the does not involve a Third Party Claim, then the indemnifying party will have the right to defend, Indemnified Party shall deliver an Indemnity Notice with counsel reasonably satisfactory reasonable promptness to the indemnified Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party, at 's rights hereunder except to the sole cost and expense of the indemnifying party, such Third extent that an Indemnifying Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement demonstrates that provides for any relief other than the payment of monetary damages).
(c) it has been irreparably prejudiced thereby. If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Indemnifying Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party Indemnified Party that it does not dispute its liability the claim described in such Indemnity Notice or fails to notify the indemnified party with respect to Indemnified Party within the Third Dispute Period whether the Indemnifying Party Claimdisputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.2 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with paragraph (c) of this Section 8.3.
(c) Any dispute submitted to arbitration pursuant to this Section 8.3 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American
(d) Arbitration Association upon application made to it for such purpose by the Indemnified Party. The Board of Arbitration shall meet in New York 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) calendar 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 (30) calendar 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 court of competent jurisdiction.
(e) In . Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability expenses and fees of the indemnifying party member of the Board of Arbitration appointed by such party, provided, however, that the expenses and fees of the third member of the Board of Arbitration and any other expenses of the Board of Arbitration not capable of being attributed to any one member shall be borne in equal parts by the Indemnifying Party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionIndemnified Party.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 8.01 will be asserted and resolved as follows:
(a) In order for an Indemnified Party to be entitled to any indemnification provided for under Section 8.01 in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the event Indemnified Party (a "Third Party Claim"), the Indemnified Party must deliver 51 57 a Claim Notice to the Indemnifying Party within thirty (30) Business Days after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that failure to give such Claim Notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party, provided that all Indemnifying Parties with respect to such Third Party Claim jointly acknowledge to the Indemnified Party its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may be modified through written agreement of the parties or arbitration hereunder) and provide assurances reasonably satisfactory to the Indemnified Party that the Indemnifying Parties will be financially able to satisfy such claim in full if it is decided adversely. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (except as hereinafter provided), but shall continue to pay for any expenses of investigation or any Loss suffered. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as hereinafter provided), separate from the counsel employed by the Indemnifying Party. Notwithstanding the foregoing, if (i) the Indemnifying Party shall not assume the defense of a Third Party Claim with counsel satisfactory to the Indemnified Party within five (5) Business Days of any Claim Notice, or (ii) legal counsel for the Indemnified Party notifies the Indemnifying Party that there are or may be legal defenses available to the Indemnified Party or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party, which, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such Indemnified Party, or (iii) the Indemnifying Party shall assume the defense of a Third Party Claim and fail to diligently and vigorously prosecute such defense in a timely manner, then in each such case the Indemnified Party, by notice to the Indemnifying Party, may employ its own counsel and control the defense of the Third Party Claim and the Indemnifying Party shall be liable for the reasonable fees, charges and disbursements of counsel employed by the Indemnified Party; and the Indemnified Party shall be promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third Party Claim, the indemnified party parties hereto shall deliver written notification thereof cooperate in the defense thereof. Such cooperation shall include the retention and provision to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature counsel of the controlling party of records and information which are reasonably relevant to such Third Party Claim, together with and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall have the amount orright to settle, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the compromise or discharge a Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in other than any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by in which criminal conduct is alleged) without the Indemnified Party's consent if such settlement, compromise or discharge
(i) constitutes a complete and unconditional discharge and release of all appropriate proceedingsIndemnified Parties, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that ii) provides for any no relief other than the payment of monetary damages)damages and such monetary damages are paid in full by the Indemnifying Party, and in all other cases may not so settle without the prior written consent of the Indemnified Party.
(c) If In the indemnifying party fails to notify the indemnified party within the Dispute Period event any Indemnified Party should have a claim under Section 8.01 against any Indemnifying Party that the indemnifying party desires to defend the does not involve a Third Party Claim, or if the indemnifying party gives such notice but fails Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to prosecute vigorously and diligently or settle the Third Indemnifying Party. The failure by any Indemnified Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then Indemnity Notice shall not impair such party's rights hereunder except to the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying party, the Third extent that an Indemnifying Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) demonstrates that it has been actually prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability the claim described in such Indemnity Notice or fails 52 58 to notify the indemnified party with respect Indemnified Party within the Dispute Period as to whether the Third Indemnifying Party Claimdisputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party under Section 8.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration as provided in a court Article 11.
(d) The indemnification provisions of competent jurisdictionthis Article VIII shall constitute the sole and exclusive remedy of the parties hereto, for any inaccuracy, untruth, incompleteness or other breach of any representation or warranty contained in or made pursuant to this Agreement or for any breach of or failure to perform any covenant or agreement made in this Agreement or otherwise arising out of the contemplated transactions, and the parties each waive any other remedy, which they or any other Person entitled to indemnification hereunder may have at law or in equity with respect thereto. The amount of Losses suffered by any Person entitled to indemnification shall be reduced by an amount equal to any insurance recovery received by such Person with respect to such Loss and shall be reduced or increased by any Tax benefit or detriment attributable to the realization of such Loss and any Tax benefit or detriment attributable to the proper accounting of the Tax consequences of the receipt of any indemnification payment payable hereunder.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness Notwithstanding anything contained in this Agreement to the indemnifying party. If contrary, at and after the indemnifying party notifies the indemnified party that it does not dispute the Closing, no Seller shall be entitled to any indemnification, right of contribution or other right of recovery from either Target Company in connection with any claim described in such Claim Notice made by or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claimwhich could be made by an Indemnified Party against a Target Company or which a Target Company could be liable for, the Loss in the amount specified in the Claim Notice will all of which are irrevocably waived and released by each Seller.
(f) Any payment under this Article VIII shall be conclusively deemed a liability treated for tax purposes as an adjustment of the indemnifying party and the indemnifying party shall pay the amount of such Loss Purchase Price to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect extent such characterization is proper and permissible under relevant Tax Laws, or, alternatively, by Purchaser as an offset to a Tax benefit item, if such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of characterization is proper under such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionTax Laws.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Microdyne Corp)
Method of Asserting Claims. (a) All claims for indemnification by any indemnified party hereunder will an Indemnified Person pursuant to this Article XI shall be asserted and resolved as follows:
(a) In made in accordance with the event of any Third Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature provisions of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party ClaimEscrow Agreement.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect The Indemnified Person shall give prompt written notification to the Stockholders Representatives of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article XI may be sought (a "Third Party Claim"); provided, then however, that no delay on the indemnifying party will have part of the right Indemnified Person in notifying the Stockholders Representatives shall relieve the Stockholders of any liability or obligation hereunder except to defendthe extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Stockholders Representatives may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the indemnified partyIndemnified Person, provided the Stockholders Representatives acknowledge in writing to the Indemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such action, suit or proceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Article XI. If the Stockholders Representatives do not so assume control of such defense, the Indemnified Person shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the sole cost Stockholders Representatives assume control of such defense and expense the Indemnified Person reasonably concludes that the indemnifying parties and the Indemnified Person have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Person shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the indemnifying partystatus of such action, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously suit or proceeding and diligently prosecuted the defense thereof and shall consider in good faith recommendations made by the indemnifying other party with respect thereto. The Indemnified Person shall not agree to a final conclusion any settlement of such action, suit or will be settled at proceeding without the discretion of the indemnifying party (but only with the prior written consent of the indemnified party in the case of Stockholders Representatives, which shall not be unreasonably withheld. The Stockholders Representatives shall not agree to any settlement that provides for any relief other than of such action, suit or proceeding without the payment prior written consent of monetary damagesthe Indemnified Person, which shall not be unreasonably withheld except as provided in Section 11.02(d).
(c) If Notwithstanding anything to the indemnifying party fails to notify the indemnified party within the Dispute Period contrary in this Section 11.02, should any claim hereunder involve a situation where an Indemnified Person reasonably anticipates that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense part of the indemnifying partyclaim will be borne by it due to (i) the Basket or (ii) the Damages from such claim exceeding the Indemnification Escrow Fund, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by Indemnified Person and the indemnified party in a reasonable manner Stockholders Representatives shall jointly consult and in good faith or will be settled at the discretion of the indemnified partyproceed as to any such claim.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability Notwithstanding anything to the indemnified party with respect to the Third Party Claimcontrary in this Section 11.02, the Loss in Stockholders Representatives shall not settle or compromise any claim or action without the amount specified in the Claim Notice will be conclusively deemed a liability express written consent of the indemnifying party and Indemnified Person, which consent may be withheld for any reason or no reason, if such settlement involves the indemnifying party shall pay issuance of injunctive or other forms of non-monetary relief, binding upon the amount Indemnified Person, or a plea of such Loss to guilty or nolo contendere on the indemnified party part of any Indemnified Person in any criminal or quasi-criminal proceeding or which has any collateral estoppel effect on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionIndemnified Person.
(e) In Notwithstanding anything to the event contrary in this Section 11.02, the Stockholders Representatives shall not be entitled to assume control of any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, Claim (and the indemnified party reasonable fees and expenses of counsel retained by the Indemnified Person shall deliver a Claim Notice with reasonable promptness be included within the Damages relating to the indemnifying party. If claim) if (i) the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Person reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claimclaim for indemnification would be detrimental in any material respect to or injure in any material respect the Indemnified Person's reputation or future business prospects or (ii) the claim seeks an injunction or equitable relief against the Indemnified Person. With respect to the actions, lawsuits, investigations, proceedings and other claims that are the subject to this Section 11.02(d), the indemnifying party Stockholders Representatives shall have the right to retain their own counsel (but the expense of such counsel shall be at the expense of the Stockholders Representatives) and participate therein, and the indemnified party will proceed Stockholders shall not be liable for any settlement of any such action, proceeding or claim without the Stockholders Representatives' written consent (which consent shall not be unreasonably withheld).
(f) Notwithstanding anything to the contrary in good faith to negotiate this Section 11.02, the Indemnified Persons shall not settle or compromise any claim or action without the express written consent of the Stockholders Representatives, which consent may be withheld for any reason or no reason, if such settlement involves the issuance of injunctive or other forms of non-monetary relief, binding upon any Stockholder, or a resolution plea of such dispute, and if not resolved through negotiations within a reasonable period guilty or nolo contendere on the part of time, such dispute shall be resolved by litigation any Stockholder in a court of competent jurisdictionany criminal or quasi-criminal proceeding or which has any collateral estoppel effect on any Stockholder.
Appears in 1 contract
Method of Asserting Claims. The party making a claim under this Article VIII is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article VIII is referred to as the "Indemnifying Party". All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article VIII shall be asserted and resolved as follows:
(a) In the event Whenever an Indemnified Party becomes aware of any Third a claim for which an Indemnifying Party Claimwould be liable to an Indemnified Party hereunder, the indemnified party Indemnified Party shall deliver written notification with reasonable promptness notify in writing the Indemnifying Party of such claim, identifying the representation or warranty on which such claim is based, the basis for such claim or demand, and the amount or the estimated amount thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature extent then determinable (which estimate shall not be conclusive of the Third Party Claim, together with final amount of such claim and demand; the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “"Claim Notice”"). The indemnifying party will notify the indemnified party as soon as practicable; PROVIDED, but in that any case within 30 days of receipt of failure to give a Claim Notice (will not be deemed a waiver of any rights of the “Dispute Period”), whether the indemnifying party disputes its liability Indemnified Party except to the indemnified party extent the rights of the Indemnifying Party are actually prejudiced by such failure. If the basis of such claim is a claim or demand by a third party, the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party) to represent the Indemnified Party and whether shall pay the indemnifying party desiresreasonable fees and disbursements of such counsel with regard thereto; PROVIDED, at its sole cost and expensethat any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to defend retain counsel, whose fees and expenses shall be at the indemnified expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party. After the Indemnifying ▇▇▇▇▇ shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by either party against without the prior written consent of the other party (which consent will not be unreasonably withheld) unless, as part of such Third settlement, the Indemnified Party Claimshall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party.
(b) If Whenever any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party Indemnified Party shall send a Claim Notice with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory such claim to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages)Indemnifying Party.
(c) If After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article VIII, the indemnifying party fails affected parties each agree to notify retain all Books and Records related to such Claim Notice. In each instance, the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Indemnified Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted kept fully informed by the indemnified party in a reasonable manner Indemnifying Party and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the Third Party Claim, party providing such information or documents and which is not otherwise generally available to the Loss in public and not already within the amount specified in the Claim Notice will be conclusively deemed a liability knowledge of the indemnifying party and to whom the indemnifying party shall pay information is provided (unless otherwise covered by the amount confidentiality provisions of such Loss to any other agreement among the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claimparties hereto, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution or any of such disputethem), and if except as may be required by applicable law, shall not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
disclosed to any third person (e) In except for the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability representatives of the indemnifying party and being provided with the indemnifying information, in which event the party being provided with the information shall pay the amount of request its representatives not to disclose any such Loss information which it otherwise required hereunder to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionkept confidential).
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will be asserted and resolved as follows:
a. In order for a party to be entitled to any indemnification arising out of or involving a claim or demand made by any person not a party to this Agreement against the indemnified party (aa "Third Party Claim"), the indemnified party shall deliver a claim notice to the indemnifying party promptly after receipt by such indemnified party of written notice of the Third Party Claim; provided, that failure to give such Claim Notice shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure.
b. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party, which counsel must be reasonably satisfactory to the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, but shall continue to pay for any expenses of investigation or any loss suffered. If the indemnifying party assumes such defense, 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. If (i) the indemnifying party shall not assume the defense of a Third Party Claim with counsel satisfactory to the indemnified party within five business days of any claim notice, or (ii) legal counsel for the indemnified party notifies the indemnifying party that there are or may be legal defenses available to the indemnifying party or to other indemnified parties which are different from or additional to those available to the indemnified party, which, if the indemnified party and the indemnifying party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such indemnified party, or (iii) if the indemnifying party shall assume the defense
(i) constitutes a complete and unconditional discharge and release of the indemnified party, and (ii) provides for no relief other than the payment of monetary damage and such monetary damages are paid in full by the indemnifying party.
c. In the event of any either party should have a claim that does not involve a Third Party Claim, the indemnified party shall promptly deliver written notification thereof an indemnity notice to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”)party. The failure by any indemnified party to give the indemnity notice shall not impair such party's rights hereunder except to the extent that an indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period demonstrates that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) it has been prejudiced thereby. If the indemnifying party notifies the indemnified party that it does not dispute its liability the claim described in such indemnity notice or fails to notify the indemnified party with respect to within thirty (30) days whether the Third Party Claimindemnifying party disputes the claim described in such indemnity notice, the Loss loss in the amount specified in the Claim Notice indemnity notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethirty (30) days, such dispute shall be resolved as provided herein and by litigation in a court of competent jurisdictionlaw.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under this Section 15 will be asserted and resolved as follows:
(ai) In If any claim or demand in respect of which an Indemnified Party might seek indemnity under this Section 15 is asserted against or sought to be collected from such Indemnified Party by a person or entity other than Contributor, Acquiror or any Affiliate of the event Contributor or Acquiror (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice (as defined below) with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of any such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice the Dispute Period (the “Dispute Period”), as defined below) whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under this Section 15 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(ba) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 15C(i), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Section 15). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (a), may file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party, at the sole cost and expense of the Indemnifying Party, will provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (a), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Section 15 with respect to such Third Party Claim.
(cb) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 15C(i), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (b), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (c) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (b) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (b), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(dc) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under this Section 15 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Section 15 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (iii) of competent jurisdiction.this Section 15C.
(eii) In the event If any indemnified party has Indemnified Party should have a claim under this Section 15C against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice (as defined below) with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Section 15 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with paragraph (iii) of this Section 15C.
(iii) Any dispute submitted to arbitration pursuant to this Section 15C shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for such purpose by the Indemnified Party. The Board of Arbitration shall meet in New York City, New York 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) calendar 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 (30) calendar 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 court of competent jurisdiction.. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the member of the Board of Arbitration appointed by such party, provided, however, that the expenses and fees of the third member of the Board of Arbitration and any other expenses of the Board of Arbitration not capable of being attributed to any one member shall be borne in equal parts by the Indemnifying Party and the Indemnified Party. For purposes of this Section 15, the following terms shall have the meanings ascribed to them below:
Appears in 1 contract
Sources: Contribution Agreement (American Real Estate Investment Corp)
Method of Asserting Claims. All claims for indemnification by -------------------------- any indemnified party hereunder Indemnified Party under Section 8.01 will be asserted and resolved as ------------ follows:
(a) In the event any claim or demand in respect of any which an Indemnified Party might seek indemnity under Section 8.01 is asserted against or ------------ sought to be collected from such Indemnified Party by a Person other than a Purchaser Indemnified Party (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the respect to such Third Party Claim, together with but only to the amount or, if not then reasonably ascertainable, extent that the estimated amount, determined in good faith, Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Third Party Claim (a “Claim Notice”)Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section ------- 8.02 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, ---- to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 8.02(a), then the indemnifying party Indemnifying Party will have the right to defend, --------------- with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably, vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If damages or that provides for the indemnifying party fails payment of monetary damages as to notify which the Indemnified Party will not be indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense in full by reason of the indemnifying party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.Section --------
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 11.1 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.1(a) or (b) is timely asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Purchaser (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”)Indemnifying Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 11.1(a) or (b) and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) i. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.2(a), then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Indemnifying Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld). The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof, with legal counsel reasonably acceptable to the Indemnified Party; provided, however, that if requested by the Indemnifying Party, the Indemnified Party will cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 11.2(a)(i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.1 with respect to such Third Party Claim.
ii. If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim pursuant to this Section 11.2(a)(ii), then the Indemnified Party will 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 will be prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim or any cross-complaint against any Person (other than the Indemnifying Party or any of its Affiliates). Notwithstanding the foregoing provisions of this Section 11.2(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in Section 11.2(a)(iii), the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 11.2(a)(ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.2 (a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(d) iii. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party ClaimClaim under Section 11.1(a) or (b), the Loss in the amount specified in the Adverse Consequences arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss Adverse Consequences to the indemnified party Indemnified Party on demanddemand following the final determination thereof (subject to the limitations contained herein). If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 11.1(a) or (b) against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifying Party. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claimIndemnity Notice, the Loss in Adverse Consequences arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.1(a) or (b) and the indemnifying party Indemnifying Party shall pay the amount of such Loss Adverse Consequences to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction. Notwithstanding the preceding sentence, if a portion of such claim subject to dispute is not subject to dispute the Indemnifying Party shall pay such undisputed portion to the Indemnified Party on demand.
Appears in 1 contract
Method of Asserting Claims. (a) All claims for indemnification by any indemnified party hereunder will an Indemnified Person pursuant to this Article VI shall be asserted and resolved as follows:
(a) In the event of any Third Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together made in accordance with the amount or, if not then reasonably ascertainable, provisions of this Section 6.2 and the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party ClaimEscrow Agreement.
(b) If a third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to Section 6.1, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the indemnifying party notifies Company Stockholders or the indemnified party within Indemnification Representative, (ii) such Indemnified Person may make a claim for indemnification pursuant to this Article VI in accordance with the Dispute Period that provisions of the indemnifying party desires Escrow Agreement, and (iii) such Indemnified Person shall be reimbursed, in accordance with the provisions of the Escrow Agreement, for any such Damages for which it is entitled to defend the indemnified party with respect indemnification pursuant to this Article VI (subject to the Third Party Claimright of the Indemnification Representative to dispute 35 41 the Indemnified Person's entitlement to indemnification under the terms of this Article VI).
(c) The Indemnified Person shall give prompt written notification to the Indemnification Representative of the commencement of any action, then suit or proceeding relating to a third party claim for which indemnification pursuant to Section 6.1 may be sought; provided, however, that no delay on the indemnifying party will have part of the right Indemnified Person in notifying the Indemnification Representative shall relieve the Company Stockholders of any liability or obligation hereunder except to defendthe extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Indemnification Representative may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the indemnified partyIndemnified Person, at provided the sole cost and expense Indemnification Representative acknowledges in writing to the Indemnified Person, on behalf of the indemnifying partyCompany Stockholders, that the Company Stockholders shall indemnify the Indemnified Person with respect to all elements of such Third Party Claim by all appropriate proceedingsaction, which proceedings will suit or proceeding and any Damages, fines, costs or other liabilities that may be vigorously and diligently prosecuted by assessed against the indemnifying party to a final conclusion Indemnified Person in connection with such action, suit or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) proceeding. If the indemnifying Indemnification Representative does not so assume control of such defense, the Indemnified Person shall control such defense. The party fails to notify not controlling such defense may participate therein at its own expense; provided that if the indemnified party within Indemnification Representative assumes control of such defense and the Dispute Period Indemnified Person reasonably concludes that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party parties and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Person have conflicting interests or different defenses available with respect to such claimaction, suit or proceeding, the indemnifying reasonable fees and expenses of counsel to the Indemnified Person shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the indemnified party will proceed defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Person shall not agree to negotiate any settlement or the entry of a resolution judgment in any such action, suit or proceeding without the prior written consent of the Indemnification Representative, which consent shall not be unreasonably withheld or delayed. The Indemnification Representative shall not agree to any settlement or the entry of a judgment in any action, suit or proceeding without the prior written consent of the Indemnified Person, which shall not be unreasonably withheld (it being understood that it is reasonable to withhold such disputeconsent if, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claimamong other things, the indemnified party shall deliver settlement or the entry of a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed judgment (i) lacks a liability complete release of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its Indemnified Person for all liability with respect to such claim, thereto or (ii) imposes any liability or obligation on the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionIndemnified Person).
Appears in 1 contract
Sources: Merger Agreement (Security Dynamics Technologies Inc /De/)
Method of Asserting Claims. All Subject to Section 8.1, all claims for indemnification under this Article VIII by any indemnified party claiming indemnification hereunder (an "Indemnified Party") will be asserted and resolved as follows:.
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this Article VIII is asserted against or sought to be collected from such Indemnified Party by a Person other than either the parties hereto or any Affiliate of the parties hereto (a "Third Party Claim"), the indemnified party Indemnified Party shall deliver a written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and such Third Party Claim specifying the nature of the and basis for such Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the such Third Party Claim (a “"Claim Notice”") with reasonable promptness to the party against whom a claim for indemnification is being asserted hereunder (an "Indemnifying Party"). If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party will be obligated to indemnify the Indemnified Party with respect to such Third Party Claim except to the extent that the Indemnifying Party's ability to defend is prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 fifteen (15) calendar days of following receipt of a the Claim Notice (the “"Dispute Period”), ") whether the indemnifying party Indemnifying Party accepts or disputes its liability to the indemnified party Indemnified Party under this Article VI and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 8.4, then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled or, at the discretion of the indemnifying party Indemnifying Party, to settle such Third Party Claim (but only with the consent of the indemnified party Indemnified Party, which shall not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Article VIII).
(c) If . Subject to the indemnifying party fails to notify foregoing, the indemnified party within the Dispute Period Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the indemnifying party desires Indemnified Party may, at the cost and expense of the Indemnifying Party, at any time prior to defend the Third Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 8.4(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party Claimreasonably believes to be necessary or appropriate to protect its interests; and provided, or further, that if requested by the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle Indemnifying Party, the Third Indemnified Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defendwill, at the sole cost and expense of the indemnifying partyIndemnifying Party, provide full cooperation to the Indemnifying Party and its counsel in contesting any Third Party Claim by all appropriate proceedingsthat the Indemnifying Party elects to contest. The Indemnified Party may participate in, which proceedings will be prosecuted but not control, any defense or settlement of any Third Party Claim controlled by the indemnified party Indemnifying Party pursuant to this Section 8.4 and, except as provided in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claimpreceding sentence, the Loss in the amount specified in the Claim Notice Indemnified Party will be conclusively deemed a liability of the indemnifying party bear its own costs and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability expenses with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying partyparticipation. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.Notwithstanding
Appears in 1 contract
Method of Asserting Claims. The Party making a claim under this Section, or any other indemnity provision herein, is hereinafter referred to as the "Indemnified Party" and the Party against whom such claims are asserted is hereinafter referred to as the "Indemnifying Party." All claims for indemnification by any indemnified party hereunder will an Indemnified Party shall be asserted and resolved as follows: 60
(i) If any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, such Indemnified Party shall as promptly as is practicable after its receipt of such claim or demand, deliver a Claim Notice to the Indemnifying Party; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent that either the rights of the Indemnifying Party are actually prejudiced or such notice is not given within the applicable time periods set forth in this Agreement. The Indemnifying Party may, and upon request of the Indemnified Party shall, retain counsel of its choice to represent the Indemnified Party and any others the Indemnifying Party may reasonably designate in connection with such claim or demand and shall pay the fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel to retain counsel whose reasonable fees and expenses shall be at the expense of the Indemnifying Party to file any action, answer or other pleading and take such other action which it shall reasonably deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party. In the event that the Indemnifying Party shall retain such counsel, the Indemnified 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 Indemnified Party unless:
(a) In the event of any Third Indemnifying Party Claim, and the indemnified party Indemnified Party shall deliver written notification thereof have mutually agreed to the indemnifying party with reasonable promptness, enclosing a copy retention of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount such counsel; or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) the named parties to any such proceeding (including, but not limited to, any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would involve such counsel in an actual or potential conflict of interest in violation of applicable principles of professional ethics.
(ii) If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand that the Indemnifying Party defends, 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. If the indemnifying party notifies Indemnifying Party has accepted responsibility in writing, no claim or demand that would result in an Indemnifying Party being liable hereunder may be settled without the indemnified party within consent of 61 the Dispute Period Indemnifying Party which consent shall not be unreasonably withheld. Unless the Indemnifying Party shall have agreed in writing that the indemnifying party desires to defend the indemnified party with respect any and all damages to the Third Indemnified Party Claim, then the indemnifying party will have the right related to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted a claim or demand are fully covered by the indemnifying party to a final conclusion indemnities provided herein, no such claim or will demand may be settled at the discretion of the indemnifying party (but only with without the consent of the Indemnified Party, which consent will not be unreasonably withheld. Except with respect to settlements entered into without the Indemnified Party's consent pursuant to the immediately preceding sentence, to the extent it shall be determined that the Indemnified Party shall have no right pursuant to this Section to be indemnified party in by the case of Indemnifying Party, the Indemnified Party shall promptly pay to the Indemnifying Party:
(a) any settlement amounts previously paid or advanced by the Indemnifying Party to the Indemnified Party with respect to such matters pursuant to this Section; plus
(b) interest thereon until paid by the Indemnified Party at the Interest Rate for the period commencing on the date on which such amount was paid or advanced and ending sixty (60) days after the date on which such amount was paid or advanced and ending sixty (60) days after the date on which it was finally determined that provides for any relief other than the payment of monetary damages)Indemnified Party had no such right to be indemnified.
(ciii) If In the indemnifying party fails event the Indemnified Party should have a claim against the Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying be collected from it by a third party, the Third Indemnified Party shall as promptly as is practical send a Claim by all appropriate proceedingsNotice with respect to such claim to the Indemnifying Party; provided, which proceedings however, that any failure to give such notice will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion not waive any rights of the indemnified party.
(d) Indemnified Party except to the extent that either the rights of the Indemnifying Party are actually prejudiced or such notice is not given within the applicable time periods set forth in this Agreement. If the indemnifying party Indemnifying Party notifies in writing the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party with respect to the Third Party Claimsuch claim, the Loss in the amount specified in the Claim Notice will of such claim shall be conclusively deemed a liability of the indemnifying party Indemnifying Party hereunder and the indemnifying party shall pay the amount of such Loss be paid to the indemnified party on demandIndemnified Party immediately. If the indemnifying party has timely disputed its liability with respect to Indemnifying Party disputes such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictiongood faith negotiations between the Parties.
(eiv) In From and after the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver delivery of a Claim Notice with hereunder, at the reasonable promptness request of the Indemnifying Party, the Indemnified Party shall grant the Indemnifying Party and its representatives full and complete access to the indemnifying party. If books, records and properties of the indemnifying party notifies Indemnified Party to the indemnified party that it does not dispute extent reasonably related to the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in matters with which the Claim Notice is concerned. The Indemnifying Party will not, and shall require that its representatives do not, use (except in connection with such Claim Notice) or disclose to any third Person other than the Indemnifying Party's representatives 62 (except as may be conclusively deemed required by law) any information obtained that is designated as confidential by the Indemnified Party, unless such information is:
(a) generally available to the public other than as the result of a liability wrongful act or omission by the Indemnifying Party;
(b) already within the knowledge of the indemnifying party and the indemnifying party shall pay the amount of such Loss Indemnifying Party;
(c) available to the indemnified Indemnifying Party through other Sections herein, or
(d) provided to the Indemnifying Party in writing by a third party on demandwho is under no obligation to the Indemnified Party to protect the confidentiality thereof. If All such access shall be granted during normal business hours, shall be subject to the indemnifying party has timely disputed its liability normal safety regulations of the Indemnified Party, and shall be granted under conditions that will not interfere with the business and operations of the Indemnified Party. Nothing contained in this Section shall be construed to expand or reduce the rights or obligations of the Indemnifying Party with respect to such claim, any information previously provided to the indemnifying party and the indemnified party will proceed in good faith Indemnifying Party pursuant to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionany other confidentiality agreement.
Appears in 1 contract
Method of Asserting Claims. (a) All claims for indemnification by any indemnified party hereunder will Liberty Parent Indemnified Person or Schlumberger Indemnified Person (each, an “Indemnified Party”) shall be asserted and resolved as follows:set forth in this Section 6.4.
(ab) A claim for indemnification for any matter not involving a Third Party Claim may be asserted by notice to the Party from whom indemnification is sought; provided, however, that failure to so notify the Party from whom indemnification is sought (the “Indemnifying Party”) shall not preclude the Indemnified Party from any indemnification which it may claim in accordance with this Article VI.
(c) If an Indemnified Party has knowledge that a Third Party Claim has been instituted or asserted and in respect of which indemnification may be sought pursuant to Section 6.1 or Section 6.2, the Indemnified Party shall promptly notify in writing the Indemnifying Party of the assertion of such Third Party Claim. The Indemnifying Party shall have 15 days (or sooner, if the nature of the Third Party Claim so requires) from the personal delivery or mailing of such notice (the “Indemnification Notice Period”) to notify the Indemnified Party whether or not it desires to defend the Indemnified Party against such Third Party Claim; provided, that in order to exercise such right the Indemnifying Party must acknowledge in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party as provided hereunder. In the event that the Indemnifying Party notifies the Indemnified Party within the Indemnification Notice Period that, with respect to a Third Party Claim, it desires to defend the Indemnified Party against such Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party at the Indemnifying Party’s sole cost and expense and with counsel (plus local counsel if appropriate) reasonably satisfactory to the Indemnified Party; provided, 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. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, compromise or consent to entry of any judgment or enter into any settlement agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 6.1 or Section 6.2 (whether or not the Indemnified Party is an actual or potential party thereto), unless such compromise, consent or settlement involves only the payment of money damages for which the Indemnifying Party will indemnify the Indemnified Party hereunder and the claimant (or claimants) and such Party provide to such other Party an unqualified release from all liability in respect of the Third Party Claim. If the right to assume and control the defense is exercised, the Indemnified Party shall have the right to participate in, but not control, such defense at its own expense and the Indemnifying Party’s indemnity obligations shall be deemed not to include attorneys’ fees and litigation expenses incurred in such participation by the Indemnified Party after the assumption of the defense by the Indemnifying Party in accordance with the terms of this Agreement; provided, however, that the Indemnified Parties collectively shall be entitled to employ one firm or separate counsel (plus local counsel if appropriate) to represent the Indemnified Parties if, in the opinion of counsel to each Indemnified Party seeking to employ such separate counsel, a conflict of interest between such Indemnified Party or Parties and the Indemnifying Party exists in respect of such claim and, in each such event, the fees, costs and expenses of one such firm or separate counsel (plus one local counsel per jurisdiction if appropriate) shall be paid in full by the Indemnifying Party. If the Indemnifying Party elects not to defend the Indemnified Party against any Third Party Claim which relates to any Losses indemnified against by it hereunder, has not elected to assume the defense of a Third Party Claim within the Indemnification Notice Period or contests its obligation to indemnify the Indemnified Party for such Losses under this Agreement, the Indemnified Party may defend, negotiate and settle the claim for the account and cost of the Indemnifying Party; provided, that the Indemnified Party will not settle the Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party defends any Third Party Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable expenses of defending such Third Party Claim upon submission of periodic bills. The Indemnified Party shall cooperate with the Indemnifying Party and, subject to obtaining proper assurances of confidentiality and privilege, shall make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party. If the Indemnifying Party makes any payment on any Third Party Claim, the indemnified party Indemnifying Party shall deliver written notification thereof be subrogated, to the indemnifying party with reasonable promptnessextent of such payment, enclosing a copy of to all papers served, if any, rights and specifying the nature remedies of the Third Indemnified Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, to any insurance benefits or other claims of the Third Indemnified Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability with respect to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(bd) If After any final decision, judgment or award shall have been rendered by a Governmental Authority of competent jurisdiction and the indemnifying party notifies expiration of the indemnified party within time in which to appeal therefrom, or a settlement shall have been consummated, or the Dispute Period that Indemnified Party and the indemnifying party desires to defend the indemnified party Indemnifying Party shall have arrived at a mutually binding agreement, in each case with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such a Third Party Claim by all appropriate proceedingshereunder, which proceedings will be vigorously the Indemnified Party shall forward to the Indemnifying Party notice of any sums due and diligently prosecuted owing by the indemnifying party Indemnifying Party pursuant to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability this Agreement with respect to such claim, the indemnifying party matter and the indemnified party will proceed in good faith to negotiate a resolution Indemnifying Party shall pay all of such dispute, remaining sums so due and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness owing to the indemnifying party. If Indemnified Party by wire transfer of immediately available funds within five Business Days after the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount date of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability notice or otherwise in accordance with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionthis Article VI.
Appears in 1 contract
Sources: Master Transaction Agreement (Liberty Oilfield Services Inc.)
Method of Asserting Claims. All claims for indemnification under this Article 10 by any indemnified party hereunder person entitled to indemnification (an “Indemnified Party”) under this Article 10 will be asserted and resolved as follows:
(a) In the event of any claim or demand, for which a Party hereto (an “Indemnifying Party”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from an Indemnified Party by a person other than Seller, Purchaser or their Affiliates (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing give a copy notice of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim its claim (a “Claim Notice”)) to the Indemnifying Party within thirty (30) calendar days after the Indemnified Party receives written notice of such Third Party Claim; provided, however, that notice shall be given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 thirty (30) calendar days of after receipt of a the Claim Notice (the “Dispute Notice Period”), ) whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party (but only Indemnifying Party. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the consent of the indemnified party Indemnifying Party and its counsel in the case of contesting any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period Third Party Claim that the indemnifying party desires Indemnifying Party elects to defend contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its Affiliates). 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 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Notice Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
(d) If Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the indemnifying party notifies Indemnified Party, the indemnified party that it does not dispute Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Loss in Indemnifying Party or any of its Affiliates). Notwithstanding the amount specified in foregoing provisions of this Section 10.4(a)(ii), if the Claim Notice will be conclusively deemed a Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Party with respect to such claimThird Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the indemnifying party Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 10.4(a)(ii). Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the indemnified party Indemnifying Party will proceed in good faith bear its own costs and expenses with respect to negotiate such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionThird Party Claim to allow the Indemnifying Party to participate therein.
(eb) In the event any indemnified party has Indemnified Party should have a claim against any indemnifying party Indemnifying Party hereunder that does not involve a Third Party ClaimClaim being asserted against or sought to be collected from the Indemnified Party, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifying Party. If the indemnifying party notifies the indemnified party that it (The term “Indemnity Notice” shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not dispute involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in and the amount specified in or the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the estimated amount of such Loss claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the indemnified party on demand. If the indemnifying party extent that an Indemnifying Party demonstrates that it has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionbeen prejudiced thereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under SECTION 10.02 will be asserted and resolved as follows:
(a) No claims will be made hereunder unless the total amount of such claims exceeds $100,000 at which time claims in excess of such amount will be subject to indemnification.
(b) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under SECTION 10.02 is asserted against or sought to be collected from such Indemnified Party by a Person other than Sellers, the Company, any Subsidiary, Purchaser or any Affiliate of any Seller or Purchaser (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 10.02 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 10.03(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under SECTION 10.02 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to SECTION 10.03(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 10.02 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 10.02 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. In the event any payments under this Agreement are then due by the Indemnified Party to the Indemnifying Party (whether as a direct obligation or a joint and several obligation together with other Persons), then the Indemnified Party may, at its election, set off amounts payable under this ARTICLE X against such amounts as they become due. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (c) of competent jurisdictionthis SECTION 10.03.
(ec) In the event any indemnified party has Indemnified Party should have a claim under SECTION 10.02 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 10.02 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. In the event any payments under this Agreement, including any installments payable under clauses (b), (c) OR (d) OF SECTION 1.02, are then or thereafter due by the Indemnified Party to the Indemnifying Party (whether as a direct obligation or a joint and several obligation together with other Persons), then the Indemnified Party may, at its election, set off amounts payable under this ARTICLE X against such amounts as they become due. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with paragraph (c) of this SECTION 10.03.
(d) Any dispute submitted to arbitration pursuant to this SECTION 10.03 shall be finally and conclusively determined by the decision of a single arbitrator through Jams Endispute (hereinafter sometimes called the "ARBITRATOR") selected as hereinafter provided. The arbitrator shall be selected by Jams Endispute upon application made to it for such purpose by the Indemnified Party. The arbitrability of any dispute, claim or controversy shall likewise be determined in such arbitration. Such arbitration proceeding shall be conducted in as expedited a manner as is then permitted by the commercial arbitration rules (formal or informal) of Jams Endispute. The Arbitrator shall conduct its hearings in Santa Barbara, California, and shall reach and render a decision in writing with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Arbitrator shall adopt and follow such rules and procedures as it deems necessary or appropriate. To the extent practical, decisions of the Arbitrator shall be rendered no more than thirty (30) days following commencement of proceedings with respect thereto. The Arbitrator shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Arbitrator (either prior to or after the expiration of such thirty (30) calendar 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 court of competent jurisdiction. Until any award of costs or expenses, including reasonable attorneys' fees, by the Arbitrator, each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and one-half of the expenses and fees of the Arbitrator (which shall be a joint and several obligation of multiple Indemnifying or Indemnified Parties, as the case may be). The parties and the Arbitrator shall have all of the rights and duties relating to discovery provided by Section 1283.05 of the California Code of Civil Procedure, which is hereby made a part of this Agreement, except that the Arbitrator shall have the right to disapprove or to limit any discovery which such Arbitrator deems to be for purposes of delay or otherwise unnecessarily burdensome or oppressive.
(e) The maximum amount of claims made hereunder shall not exceed the lesser of:
(i) the Purchaser's total investment in the Company (including loans or advances), or (ii) $5,000,000, except in the case of fraud by the Sellers, in which case there is no maximum. The maximum liability of any Seller, other than Love, shall be the portion of the Purchase Price received by such Seller.
(f) No claim may be made more than two (2) years from the date of the Closing.
Appears in 1 contract
Sources: Option to Purchase (PDT Inc /De/)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 8.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of any which an Indemnified Party might seek indemnity under Section 8.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than a Purchaser Indemnified Party (a “Third Party Claim”), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the respect to such Third Party Claim, together with but only to the amount or, if not then reasonably ascertainable, extent that the estimated amount, determined in good faith, Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Third Party Claim (a “Claim Notice”)Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 8.02 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 8.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously reasonably and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of this Section 8.02). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time subsequent to the delivery of a Claim Notice to the Indemnified Party and prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 8.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest; and provided, further, that the Indemnified Party may choose separate counsel at the sole cost and expense of the Indemnifying Party in the event that a conflict of interest arises between the Indemnified Party and the Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement (subject to the provisions in the first sentence of this Section 8.02(a)(i)) of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 8.02(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 8.02 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify assume the indemnified party defense of the Third Party Claim within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously reasonably and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement (subject to the provisions in the first sentence of this Section 8.02(a)(ii)) thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 8.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 8.02(a)(ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement (subject to the provisions oin the first sentence of this Section 8.02(a)(ii)) controlled by the Indemnified Party pursuant to this Section 8.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party ClaimClaim under Section 8.02, or if the Indemnifying Party fails to deliver a notice to the Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.02 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party Indemnified Party has a claim under Section 8.02 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Notice Indemnity Notice, or if the Indemnifying Party fails to notify deliver a notice to the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party disputes the claimPeriod, then the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.02 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If .
(c) Purchaser shall have the indemnifying party has timely disputed its liability with respect right to such claim, set off any amounts Seller owes it under this Section 8.02 against the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionHoldback.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified 50 55 Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of any its claim (a "Claim Notice") to the Indemnifying Party within thirty (30) calendar days after the Indemnified Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt by the Indemnified Party of a complaint, petition or institution of other formal legal action. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the indemnifying party with reasonable promptness, enclosing extent that the Indemnifying Party demonstrates that it has been prejudiced thereby; but in no event will the Indemnified Party be entitled to indemnification from the Indemnifying Party if the Indemnified Party does not provide notice of a copy Third Party Claim within ninety (90) days after the Indemnified Party receives notice of all papers served, if any, and specifying the nature of the such Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 thirty (30) calendar days of after receipt of a the Claim Notice (the “Dispute "Notice Period”), ") whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party (but only Indemnifying Party. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the consent of the indemnified party 51 56 Indemnifying Party and its counsel in the case of contesting any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period Third Party Claim that the indemnifying party desires Indemnifying Party elects to defend contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). 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 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation. The Indemnifying Party shall give sufficient prior notice to the Indemnified Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnified Party to participate therein.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Notice Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
(d) If Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the indemnifying party notifies Indemnified Party, the indemnified party that it does not dispute Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Loss in Indemnifying Party or any of its affiliates). Notwithstanding the amount specified in foregoing provisions of this Section 10.4(a)(ii), if the Claim Notice will be conclusively deemed a Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Party with respect to such claimThird Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the indemnifying party Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In reimburse the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.Indemnifying
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder person entitled to indemnification (an “Indemnified Party”) under this Article 10 will be asserted and resolved as follows:
(a) In the event of any claim or demand, for which a party hereto (an “Indemnifying Party”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from an Indemnified Party by a person other than Seller, Purchaser or their affiliates (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing give a copy notice of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim its claim (a “Claim Notice”)) to the Indemnifying Party within thirty (30) calendar days after the Indemnified Party receives written notice of such Third Party Claim; provided, however, that notice shall be given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party’s ability to protect its interests, or does not give the Claim Notice within the Survival Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 thirty (30) calendar days of after receipt of a the Claim Notice (the “Dispute Notice Period”), ) whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party (but only Indemnifying Party. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the consent of the indemnified party Indemnifying Party and its counsel in the case of contesting any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period Third Party Claim that the indemnifying party desires Indemnifying Party elects to defend contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). 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 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Notice Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
(d) If Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the indemnifying party notifies Indemnified Party, the indemnified party that it does not dispute Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Loss in Indemnifying Party or any of its affiliates). Notwithstanding the amount specified in foregoing provisions of this Section 10.4(a)(ii), if the Claim Notice will be conclusively deemed a Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Party with respect to such claimThird Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the indemnifying party Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 10.4(a)(ii). Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the indemnified party Indemnifying Party will proceed in good faith bear its own costs and expenses with respect to negotiate such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionThird Party Claim to allow the Indemnifying Party to participate therein.
(eb) In the event any indemnified party has Indemnified Party should have a claim against any indemnifying party Indemnifying Party hereunder that does not involve a Third Party ClaimClaim being asserted against or sought to be collected from the Indemnified Party, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness (as hereinafter defined) to the indemnifying partyIndemnifying Party within the Survival Period. If the indemnifying party notifies the indemnified party that it (The term “Indemnity Notice” shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not dispute involve a Third Party Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in and the amount specified in or the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the estimated amount of such Loss claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the indemnified party on demand. If the indemnifying party extent that an Indemnifying Party demonstrates that it has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionbeen prejudiced thereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under this Article VI will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Article VI is asserted against or sought to be collected from such Indemnified Party by a Person other than the Company, any Subsidiary, any Investor or any Affiliate of the Company or any Investor (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under this Article VI and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 6.03(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Article VI). The In demnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof (subject to the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Article VI); provided, however, that the Indemnified Party, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), may file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party, at the sole cost and expense of the Indemnifying Party, will provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article VI with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 6.03(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (subject to the consent of the Indemnifying Party in the case of any settlement that provides any relief other than the payment of monetary damages; which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof (subject to the consent of the Indemnifying Party in the case of any settlement that provides for any relief other than the payment of monetary damages; which consent will not be unreasonably withheld); provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses, if any, of its separate counsel incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under this Article VI or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article VI and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under this Article VI against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article VI and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Master Investment Agreement (American Real Estate Investment Corp)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will Indemnified Party shall be asserted and resolved as follows:
(a) In the event any claim or demand is asserted against or sought to be collected from such Indemnified Party by a Person other than a party hereto (a “Third Party Claim”), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of any such Third Party Claim, the indemnified party Indemnifying Party shall deliver written notification thereof not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party’s ability to defend has been irreparably and materially prejudiced by such failure of the Indemnified Party. The indemnifying party will Indemnifying Party shall notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 7.02 or Section 7.03, as the case may be, and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party pursuant to the preceding sentence that the Indemnifying Party desires to defend the Indemnified Party against the Third Party Claim, then the Indemnifying Party shall provide reasonable assurance of the Indemnifying Party’s ability to pay the Third Party Claim. Anything to the contrary in this Article 7 notwithstanding (including this Section 7.05), the Parent shall retain the right to control in all respects any Action, matter or other proceeding relating to Taxes, regardless of whether the Seller Group is obligated to indemnify the Parent with respect to such Action, matter or other proceeding.
(b) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 7.05, and provides the reasonable assurance described in the penultimate sentence of Section 7.05(a), then the indemnifying party will Indemnifying Party shall have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will shall be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will shall be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which shall not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party shall not be indemnified in full pursuant to Section 7.02 or Section 7.03, as applicable). The Indemnifying Party shall have full control of such defense and proceedings; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (b), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 7.05(b), and except as provided in the preceding sentence, the Indemnified Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 7.02 or Section 7.03, as applicable, with respect to such Third Party Claim.
(c) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 7.05(b), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails Indemnifying Party gives notice that it elects not to give any notice whatsoever within defend the Dispute PeriodThird Party Claim, then the indemnified party will Indemnified Party shall have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will shall be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will shall be settled at the discretion of the indemnified party.
(d) If Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the indemnifying party notifies Indemnified Party, the indemnified party that it does not dispute its liability Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the indemnified party with respect to the Indemnified Party and its counsel in contesting any Third Party ClaimClaim that the Indemnified Party is contesting. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss Indemnified Party pursuant to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.this
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will be asserted and resolved as follows:
(a) In If a third party asserts that the event of any Third Party Claim, Purchaser or Cigar is liable to such third party for a monetary or other obligation which may result in Damages for which the indemnified party shall deliver written notification thereof Purchaser may be entitled to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if anyindemnification pursuant to this Article VI, and specifying the nature of Purchaser or Cigar, as the Third Party Claimcase may be, together with reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the amount orPurchaser or Cigar, if not then reasonably ascertainableas the case may be, shall be entitled to satisfy such obligation, after prior notice to and consent from the estimated amountIndemnitors, determined in good faith(ii) the Purchaser or Cigar, of as the Third Party Claim case may be, may make a claim for indemnification pursuant to this Article VI, and (a “Claim Notice”). The indemnifying party will notify iii) the indemnified party Indemnitors shall reimburse the Purchaser or Cigar, as soon as practicablethe case may be, but in for any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability such Damages for which it is entitled to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, indemnification pursuant to defend the indemnified party against such Third Party Claimthis Article VI.
(b) If The Purchaser or Cigar on the one hand, or the Company, Frut▇▇▇ ▇▇▇ Berg▇▇ ▇▇ the other hand shall give prompt written notice to the indemnifying parties of the commencement of any action, suit or proceeding relating to a third party notifies claim for which indemnification pursuant to this Article VI may be sought. Within 20 days after delivery of such notification, the indemnifying parties may, upon written notice thereof to each of the indemnified party within parties, assume control of the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claimdefense of such action, then the indemnifying party will have the right to defend, suit or proceeding with counsel reasonably satisfactory to the indemnified partyparties, provided that the indemnifying parties acknowledge in writing to each of the indemnified parties that any Damages that may be assessed against the indemnified parties in connection with such action, suit or proceeding constitute Damages for which the indemnified parties are entitled to indemnification pursuant to this Article VI. If the indemnifying parties do not so assume control of such defense, the indemnified parties shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the sole cost indemnifying parties assume control of such defense and expense independent counsel to the indemnified parties renders a written opinion to the effect that any of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously parties and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will parties 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party conflicting interests with respect to the Third Party Claimdefense of such action, suit or proceeding, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability reasonable fees and expenses of the indemnifying party and the indemnifying party shall pay the amount of such Loss counsel to the indemnified parties shall be considered "Damages" for purposes of this Agreement. The party on demand. If controlling such defense shall keep the indemnifying other party has timely disputed its liability with respect to advised of the status of such claimaction, the indemnifying party suit or proceeding and the indemnified party will proceed defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The parties controlling defense of the action shall not agree to negotiate a resolution any settlement of such disputeaction, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In suit or proceeding without the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability prior written consent of the indemnifying party and the indemnifying party other parties, which consent shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionunreasonably withheld.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 11.2 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.2 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller, Purchaser or any Affiliate of Seller or Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been prejudiced by such failure of the Purchaser Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability Liability to the indemnified party Indemnified Party under Section 11.2 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.. AMENDED ASSET PURCHASE AGREEMENT 85
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.3(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will shall be vigorously done in a reasonable manner and diligently prosecuted by the indemnifying party to a final conclusion in good faith or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages, which consent shall not be unreasonably withheld). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 11.3(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 11.3(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. So long as the Indemnifying Party is contesting the Third Party Claim in good faith and with reasonable diligence, the Indemnified Party shall not pay or settle the Third Party Claim. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 11.2, as the case may be, with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 11.3(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously contest, in a reasonable manner and diligently in good faith or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, AMENDED ASSET PURCHASE AGREEMENT 86 including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 11.3(a)(ii), if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its Liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 11.3(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.3(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability Liability to the indemnified party Indemnified Party with respect to the Third Party ClaimClaim under Section 11.2, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party under Section 11.2, and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 11.3(c).
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 11.2 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claimIndemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party under Section 11.2 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdiction.accordance with AMENDED ASSET PURCHASE AGREEMENT 87
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 8.1 will be asserted and resolved as follows:
(a) In order for an Indemnified Party to be entitled to any indemnification provided for under Section 8.1 in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the event of any Indemnified Party (a "Third Party Claim"), the indemnified party shall Indemnified Party must deliver written notification thereof a claim notice to the indemnifying party with reasonable promptness, enclosing a copy Indemnifying Party within thirty (30) Business Days after receipt by such Indemnified Party of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, written notice of the Third Party Claim (a “"Claim Notice”"). The indemnifying party will notify the indemnified party as soon as practicable; provided, but in any case within 30 days of receipt of a however, that failure to give such Claim Notice (shall not affect the “Dispute Period”), whether the indemnifying party disputes its liability indemnification provided hereunder except to the indemnified party and whether extent the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against Indemnifying Party shall have been actually prejudiced as a result of such Third Party Claimfailure.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the a Third Party ClaimClaim is made against an Indemnified Party, then the indemnifying party will have Indemnifying Party shall be entitled to participate in the right defense thereof and, if it so chooses, to defend, assume the defense thereof with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying party, provided that all Indemnifying Parties with respect to such Third Party Claim by all appropriate proceedings, which proceedings jointly acknowledge to the Indemnified Party its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may be modified through written agreement of the parties or arbitration hereunder) and provide assurances reasonably satisfactory to the Indemnified Party that the Indemnifying Parties will be vigorously and diligently prosecuted by financially able to satisfy such claim in full if it is decided adversely. Should the indemnifying party Indemnifying Party so elect to a final conclusion or will be settled at assume the discretion defense of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party Indemnifying Party shall deliver a Claim Notice with reasonable promptness not be liable to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved Indemnified Party for legal expenses subsequently incurred by litigation in a court of competent jurisdiction.the
Appears in 1 contract
Sources: Merger Agreement (Sonus Communication Holdings Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Parent or Purchaser or any Affiliate of Parent or Purchaser (a "Third Party Claim"), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice as soon as practicable to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”)Indemnifying Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 11.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party does not dispute its liability to the Indemnified Party with respect to such Third Party Claim and that it desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion by counsel reasonably satisfactory to the Indemnified Party or such Third Party Claim will be settled at the discretion of the indemnifying party (but only with Indemnifying Party; provided, however, without the prior written consent of the indemnified party in Indemnified Party, the case Indemnifying Party shall not enter into any settlement of any Third Party Claim unless such settlement that provides includes an unconditional release of the Indemnified Party for any relief liability arising out of such Claim and does not otherwise restrict the future activities of the Company or any Subsidiary. If a firm offer is made to settle a Third Party Claim which includes an unconditional release of the Indemnified Party for such Claim and does not otherwise restrict the future activities of the Company or any Subsidiary 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 fails to consent to such firm offer within 10 calendar 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 as to such Third Party Claim shall not exceed the amount of such settlement offer plus costs and expenses paid or incurred by the Indemnified Party through the end of such ten-day period. The Indemnifying Party will have full control of the defense and proceedings referred to in this clause (i), including (except as provided above) any settlement thereof. If reasonably requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the payment Indemnified Party or any of monetary damagesits Affiliates). The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or assume control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails Claim pursuant to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute PeriodSection 11.02(a), then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party (subject to any applicable limitations set forth in Section 11.01(c)), the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified partyIndemnified Party with the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnified Party will have full control of the defense and proceedings referred to in this clause (ii), including (except as provided above) any settlement thereof. If reasonably requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party (subject to any applicable limitations set forth in Section 11.01(c)), cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnifying Party or any of its Affiliates). Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following its final determination (subject to any applicable limitations set forth in Section 11.01(c)). If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 11.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness as soon as practicable to the indemnifying partyIndemnifying Party. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following its final determination (subject to any applicable limitations set forth in Section 11.01(c)). If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) In the event of any Loss resulting from misrepresentation, breach of warranty or nonfulfillment or failure of performance of any covenant or agreement contained in this Agreement as to which an Indemnified Party would be entitled to claim indemnity under Section 11.01 but for the provisions of clause (B) of paragraph (c)(i) thereof, such Indemnified Party may nevertheless deliver a written notice to the Indemnifying Party containing the information that would be required in a Claim Notice or an Indemnity Notice, as applicable, with respect to such Loss. In the case of a Claim Notice that involves a claim in excess of 100% of the amount of the remaining basket referenced in Section 11.01(c)(i)(B), the provisions of clause (i) of paragraph (a) of this Section 11.02 will be applicable. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described therein or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Loss specified in the notice will be conclusively deemed to have been incurred by the Indemnified Party for purposes of making the determination set forth in clause (B) of paragraph (c) (i) of Section 11.01. If the Indemnifying Party has timely disputed the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(d) In the event of any claim for indemnity under Section 11.01(a), Purchaser agrees to give Parent and its Representatives reasonable access to the Books and Records and employees of the Company and the Subsidiaries in connection with the matters for which indemnification is sought to the extent Parent reasonably deems necessary in connection with its rights and obligations under this Article XI.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (E&s Holdings Corp)
Method of Asserting Claims. (a) All claims for indemnification ("Claims") by any indemnified party hereunder will an Indemnified Person pursuant to this Article VII shall be asserted and resolved as follows:
(a) In the event of any Third Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together made in accordance with the amount or, if not then reasonably ascertainable, provisions of this Agreement and the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party ClaimEscrow Agreement.
(b) If a third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Article VII, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the indemnifying party notifies Stockholder Representative, (ii) such Indemnified Person may make a Claim for indemnification pursuant to this Article VII in accordance with the indemnified party within provisions of the Dispute Period that Escrow Agreement (if applicable) and this Article VII, and (iii) such Indemnified Person shall be reimbursed in accordance with the indemnifying party desires provisions of the Escrow Agreement (if applicable) and this Article VII, for any such Damages for which it is entitled to defend the indemnified party with respect indemnification pursuant to this Article VII (subject to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by Stockholder Representative to dispute the indemnifying party Indemnified Person's entitlement to a final conclusion or will be settled at indemnification under the discretion terms of the indemnifying party Escrow Agreement (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages)if applicable) and this Article VII.
(c) The Indemnified Person shall give prompt written notification to the Stockholder Representative of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VII may be sought; provided, however, that no delay on the part of the Indemnified Person in notifying the Stockholder Representative shall relieve the Stockholders of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within thirty (30) days after delivery of such notification, the Stockholder Representative may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit or proceeding provided the Stockholder Representative acknowledges in writing to the Indemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such action, suit or proceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Article VII. If the indemnifying Stockholder Representative does not so assume control of such defense, the Indemnified Person shall control such defense. The party fails to notify not controlling such defense may participate therein at its own expense; provided that if the indemnified party within Stockholder Representative assumes control of such defense and the Dispute Period Indemnified Person reasonably concludes that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party parties and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Person have conflicting interests or different defenses available with respect to such claimaction, suit or proceeding, the indemnifying reasonable fees and expenses of counsel to the Indemnified Person shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the indemnified party will proceed in good faith defense thereof. The Indemnified Person shall not agree to negotiate a resolution any settlement of such disputeaction, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In suit or proceeding without the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability prior written consent of the indemnifying party and the indemnifying party Stockholder Representative, which shall pay the amount not be unreasonably withheld. The Stockholder Representative shall not agree to any settlement of such Loss to action, suit or proceeding without the indemnified party on demand. If prior written consent of the indemnifying party has timely disputed its liability with respect to such claimIndemnified Person, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if which shall not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionunreasonably withheld.
Appears in 1 contract
Sources: Merger Agreement (Sciquest Com Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Purchaser under Section 9.1 will be asserted and resolved as follows:
(a) 9.3.1 In the event any claim or demand in respect of any which a Party might seek indemnity under Section 9.1 is asserted against or sought to be collected from such indemnified Party other than a claim brought by Party to this Agreement (a “Third Party Claim”), the indemnified party Party shall deliver a written notification thereof to the indemnifying party with reasonable promptnessnotice, enclosing containing a copy of all papers served, if anyavailable, and specifying the nature of the and basis for such Third Party ClaimClaim and for indemnified Party’s claim against indemnifying Party under Section 9.1, together with the amount or, if not then reasonably ascertainabledeterminable, the estimated amount, determined in good faith, of the Loss arising from such Third Party Claim with reasonable promptness to indemnifying Party (such notice, a “Claim Notice”). The indemnifying party will notify If indemnified Party fails to provide the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the with reasonable promptness after indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against Party receives notice of such Third Party Claim.
(b) If the , indemnifying party notifies Party shall not be obligated to indemnify the indemnified party within Party or its affiliates, as the Dispute Period case may be, with respect to such Third Party Claim to the extent that indemnifying Party has been actually prejudiced by such failure of indemnified Party. Provided that the indemnifying party desires to defend Party has accepted full liability in respect of the indemnified party with respect to the part(s) of a Third Party Claim, then Claim that relate(s) to a potential breach by the indemnifying party will Party of a warranty under this Agreement, the indemnifying Party shall have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyParty, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Party to a final conclusion or will be settled at the discretion of the indemnifying party Party (but only with the consent of the indemnified party Party, which consent will not be unreasonably withheld in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the indemnified Party will be indemnified in full).
. In the event that the indemnifying Party assumes the defense of any Third-Party Claim, it shall have the right, subject to the previous sentence, to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the indemnified Party. The indemnified Party shall have the right, at its own cost and expense, 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; provided, however, that the indemnifying Party will pay the costs and expenses of such separate counsel if (cx) in the indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the indemnified party to be represented by separate counsel because a conflict or potential conflict exists between the indemnifying Party and the indemnified Party or (y) the named parties to such Third Party Claim include both the indemnifying Party and the indemnified Party and the indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the indemnifying Party. If the indemnifying party Party elects not to compromise or defend such Third-Party Claim or fails to promptly notify the indemnified party within Party in writing of its election to defend as provided in this Agreement, the Dispute Period that indemnified Party may, pay, compromise, defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. If requested by the indemnifying party desires to defend the Third Party ClaimParty, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defendParty will, at the sole cost and expense of the indemnifying partyParty, cooperate with the indemnifying Party and its counsel in contesting any Third Party Claim that the indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim by all appropriate proceedingsin question, which proceedings will be prosecuted by in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the indemnified party in a reasonable manner and in good faith Party or will be settled at the discretion any of the indemnified partyits Affiliates).
(d) 9.3.2 If the indemnifying party notifies the indemnified party that it Party does not dispute its liability to the indemnified party with respect to take control of the Third Party Claim, the Loss indemnified Party shall have full control of the defense of Third Party Claims, and if requested by indemnified Party, indemnifying Party shall, at the sole cost and expense of indemnifying Party, provide reasonable cooperation to indemnified Party and its counsel in contesting any Third Party Claim which indemnified Party is contesting; provided that indemnifying Party and its counsel (at indemnifying Party’s sole expense) may participate in (but not control the conduct of) the defense of such Third Party Claim; and provided further, that, except with the reasonable consent of indemnifying Party, no settlement of any such Third Party Claim shall be conclusively determinative of indemnifying Party’s liability with respect to the claim relating thereto. In the event that indemnifying Party has consented in writing to any settlement of a Third Party Claim, indemnifying Party shall be deemed to have waived its right to dispute its liability to indemnified Party with respect to the amount thereof (to the extent not in excess of the limitations set forth in Section 9.1.3, if applicable).
9.3.3 Notwithstanding the provisions of Section 9.3.2, if indemnifying Party has notified indemnified Party, within thirty (30) days from indemnifying Party receiving notice of a Third Party Claim, that indemnifying Party disputes its liability to indemnified Party with respect to such Third Party Claim, and if such dispute is resolved in favor of indemnifying Party, indemnifying Party shall not be required to bear the costs and expenses of the defense of the Third Party Claim, and indemnified Party shall reimburse indemnifying Party in full for all reasonable costs and expenses incurred by indemnifying Party in connection with such litigation.
9.3.4 During any prosecution by indemnified Party of the defense of a Third Party Claim pursuant to this Section 9.3, indemnified Party shall:
(a) keep indemnifying Party informed of material developments which could affect the amount of the claim and provide such information to indemnifying Party as indemnifying Party may reasonably request; and
(b) make no admission of liability (and procure that no Group Company makes such admission), and the Third Party Claim shall not be disposed of or settled without the prior consent of indemnifying Party (which consent shall not be unreasonably conditioned, withheld or delayed).
9.3.5 In the event Purchaser should have a claim under Section 9.1 against Seller that does not involve a Third Party Claim, Purchaser shall deliver a written notice, specifying the nature of and basis for such claim, together with the amount or, if not then reasonably determinable, the estimated amount, of the Loss arising from such claim, with reasonable promptness to Seller (such notice, an “Indemnity Notice”). The failure by Purchaser to give the Indemnity Notice shall not impair Purchaser’s rights hereunder except to the extent that Seller has been actually prejudiced by such failure of Purchaser. If Seller notifies Purchaser that it does not dispute the claim described in such Indemnity Notice or fails to notify Purchaser within fifteen (15) calendar days after receipt of the Indemnity Notice whether Seller disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Seller, and the indemnifying party Seller shall pay the amount of such Loss to Purchaser on demand following the indemnified party on demandfinal determination thereof. If the indemnifying party Seller has timely disputed its liability with respect to such claim, the indemnifying party Seller and the indemnified party will Purchaser shall proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period thirty (30) days after the receipt by Purchaser of timeSeller’s notice, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 13.5.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article XI shall be asserted and resolved as follows:
(a) In THIRD PARTY CLAIMS. If any claim or demand in respect of which an Indemnified Party might seek indemnity under this Article XI is asserted against such Indemnified Party by a Person other than a Shareholder or Other Holder or the event of any Third Party ClaimParent (a "THIRD PARTY CLAIM"), the indemnified party Indemnified Party shall deliver give written notification notice (the "THIRD PARTY CLAIM NOTICE") and the details thereof including copies of all relevant pleadings, documents and information to the indemnifying party with reasonable promptness, enclosing Indemnifying Party within a copy period of all papers served, if any, and specifying thirty (30) days following the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, assertion of the Third Party Claim against the Indemnified Party (a “Claim Notice”the "THIRD PARTY CLAIM NOTICE PERIOD"). If the Indemnified Party fails to provide the Third Party Claim Notice within the Third Party Claim Notice Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 a period of thirty (30) days of after receipt of a the Third Party Claim Notice by the Indemnifying Party (the “Dispute Period”), "THIRD PARTY CLAIM RESPONSE PERIOD"):
(i) whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party and Indemnified Party under this Article XI with respect to such Third Party Claim; and
(ii) whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) . If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Third Party Claim Response Period that the indemnifying party Indemnifying Party does not dispute its indemnity obligations and desires to defend the indemnified party with respect to Indemnified Party against the Third Party Claim, then the indemnifying party will have the right to Indemnifying Party at its sole cost and expense shall defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent shall not be unreasonably withheld). The Indemnified Party will cooperate in such defense at the sole cost and expense of the Indemnifying Party. The Indemnified Party may, at the Indemnifying Party's cost and expense, at any time prior to the Indemnifying Party's delivery of the notice referred to in the case last sentence of the preceding paragraph, file any pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests. The Indemnified Party, at its expense, may participate in, but not control, any defense or settlement of any settlement that provides for any relief other than Third Party Claim conducted by the payment of monetary damagesIndemnifying Party pursuant to this Section 11.4(a).
(c) . If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Third Party Claim Response Period that the indemnifying party Indemnifying Party does not dispute its indemnity obligations and desires to defend the Third Party Claim, Claim or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to Indemnified Party shall defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
Indemnified Party (dwith the consent of the Indemnifying Party, which consent shall not be unreasonably withheld). The Indemnifying Party will, at its sole cost and expense, cooperate in such defense. Notwithstanding the foregoing provisions of this paragraph, if the Indemnifying Party is determined not to be liable for such Third Party Claim pursuant to the last paragraph of this Section 11.4(a) and Section 13.12, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense or the Indemnifying Party's participation therein pursuant to this paragraph, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such defense. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party ClaimClaim under this Article XI or is determined under Section 13.12 to be liable to indemnify the Indemnified Party, the Loss in the amount specified in the Claim Notice actual Losses as finally determined will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article XI, and the indemnifying party Indemnifying Party shall pay the amount of such Loss Losses to the indemnified party Indemnified Party on demand. If the indemnifying party has timely disputed Indemnifying Party notifies the Indemnified Party within the Third Party Claim Response Period that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethirty (30) days from the date of such Notice, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 13.12 hereof.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Merger Agreement (Red Hat Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 8.2 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnifying Party might seek indemnity under Section 8.2 is asserted against or sought to be collected from such Indemnified Party by a Person other than AsiaInfo or any Affiliate of AsiaInfo (a “Third Party Claim”), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Shareholders’ Agent on behalf of any Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)only to the extent that the Indemnifying Party’s ability to defend has been actually and materially prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 8.2 and whether the indemnifying party desires, at its sole cost and expense, Indemnifying Party elects to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party desires Indemnifying Party elects to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 8.3(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party with counsel reasonably satisfactory to the Indemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 8.2). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if (a) it irrevocably waives its right to indemnity under Section 8.2 with respect to such Third Party Claim, (b) the amount in controversy exceeds amounts in the Escrow Fund, (c) the Third Party Claim involves relief other than the payment of monetary damages, (d) if a conflict of interest arises between the Indemnifying Party and the Indemnified Party, or (e) events arise (as determined by the Indemnified Party in good faith) that impair the ability of the Indemnifying Party to fully, vigorously and diligently defend the Third Party Claim. In such event, the Indemnifying Party shall have the right, in its sole discretion, to settle any such claim; provided that with respect to the matters set forth in clauses (b), (c) (d) and (e) of this Section 8.3(a)(i) any such settlement shall be subject to the consent of the Indemnifying Party (not to be unreasonably withheld, delayed or conditioned). In the event that the Shareholders’ Agent has consented to any such settlement, the Shareholders’ Agent shall not object to the amount of any claim by the Indemnified Party against the Escrow Fund for indemnity with respect to such settlement.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party desires Indemnifying Party elects to defend the Third Party ClaimClaim pursuant to Section 8.3(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this clause (ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 8.3 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Indemnifiable Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.2(a) and the indemnifying party Indemnifying Party shall pay the amount of such Indemnifiable Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period 60 days of timereceipt of the Claim Notice (the “Resolution Period”), such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 9.7.
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 8.3 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been actually and materially prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Indemnifiable Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.2(a) or Section 8.2(b), as applicable, and the indemnifying party Indemnifying Party shall pay the amount of such Indemnifiable Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 9.8.
Appears in 1 contract
Sources: Business Combination Agreement (Asiainfo Holdings Inc)
Method of Asserting Claims. All claims for indemnification under this Article 7 by any indemnified party hereunder Person entitled to indemnification (an “Indemnified Party”) under this Article 8 will be asserted and resolved as follows:
(a) In the event of any claim or demand, for which a Party hereto (an “Indemnifying Party”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from an Indemnified Party by a Person other than Seller, Purchaser or their Affiliates (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing give a copy notice of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim its claim (a “Claim Notice”)) to the Indemnifying Party within thirty (30) calendar days after the Indemnified Party receives written notice of such Third Party Claim; provided, however, that notice shall be given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 thirty (30) calendar days of after receipt of a the Claim Notice (the “Dispute Notice Period”), ) whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 8.4(a), then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party (but only Indemnifying Party. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 8.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the consent of the indemnified party Indemnifying Party and its counsel in the case of contesting any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period Third Party Claim that the indemnifying party desires Indemnifying Party elects to defend contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). 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 8.4(a)(i), and except as specifically provided in this Section 8.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 8.4(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Notice Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
(d) If Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the indemnifying party notifies Indemnified Party, the indemnified party that it does not dispute Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Loss in Indemnifying Party or any of its Affiliates). Notwithstanding the amount specified in foregoing provisions of this Section 8.4(a)(ii), if the Claim Notice will be conclusively deemed a Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Party with respect to such claimThird Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the indemnifying party Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 8.4(a)(ii). Subject to the above terms of this Section 8.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 8.4(a)(ii), and the indemnified party Indemnifying Party will proceed in good faith bear its own costs and expenses with respect to negotiate such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionThird Party Claim to allow the Indemnifying Party to participate therein.
(eb) In the event any indemnified party has Indemnified Party should have a claim against any indemnifying party Indemnifying Party hereunder that does not involve a Third Party ClaimClaim being asserted against or sought to be collected from the Indemnified Party, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifying Party. If the indemnifying party notifies the indemnified party that it (The term “Indemnity Notice” shall mean written notification of a claim for indemnity under Article 8 hereof (which claim does not dispute involve a Third Party Claim or Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 8.4, specifying the nature of and specific basis for such claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in and the amount specified in or the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the estimated amount of such Loss claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such Party’s rights hereunder except to the indemnified party on demand. If the indemnifying party extent that an Indemnifying Party demonstrates that it has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionbeen prejudiced thereby.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 6.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of any which an Indemnified Party might seek indemnity under Section 6.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than a Purchaser Indemnified Party (a “Third Party Claim”), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the respect to such Third Party Claim, together with but only to the amount or, if not then reasonably ascertainable, extent that the estimated amount, determined in good faith, Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Third Party Claim (a “Claim Notice”)Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 6.02 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 6.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously reasonably and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of Section 6.03). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time subsequent to the delivery of a Claim Notice to the Indemnified Party and prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 6.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest; and provided, further, that the Indemnified Party may choose separate counsel at the sole cost and expense of the Indemnifying Party in the event that a conflict of interest arises between the Indemnified Party and the Indemnifying Party. 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 6.02(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 6.02 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify assume the indemnified party defense of the Third Party Claim within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously reasonably and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 6.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 6.02(a)(ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 6.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party ClaimClaim under Section 6.02, or if the Indemnifying Party fails to deliver a notice to the Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 6.02 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If Purchaser shall have the indemnifying party has timely disputed its liability with respect right to such claim, set off any amounts Seller owes it under this Section 6.02 against the indemnifying party and Purchase Price or the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionEarnout.
(eb) In the event any indemnified party Indemnified Party has a claim under Section 6.02 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Notice Indemnity Notice, or if the Indemnifying Party fails to notify deliver a notice to the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party disputes the claimPeriod, then the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 6.02 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims Claims for indemnification by any indemnified party hereunder Indemnified Party will be asserted and resolved as follows:.
(a) In the event any claim or demand in respect of any which an Indemnified Party might seek indemnity is asserted against or sought to be collected from such Indemnified Party by a Person other than the Parties (a “Third Party Claim”), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party’s ability to defend is prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party accepts or disputes its liability to the indemnified party Indemnified Party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party Claim, then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted or defended by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the reasonable discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in its sole discretion in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full). Subject to the foregoing, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the cost and expense of the Indemnifying Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 and, except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, or if the indemnifying party Indemnifying Party gives such notice but any time thereafter fails to prosecute or defend vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the reasonable discretion of the indemnified partyIndemnified Party (provided that the Indemnified Party shall give the Indemnifying Party prior notice of such settlement). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof subject to the foregoing sentence; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in Subsection (iii) below, the Indemnifying Party will 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 will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute accepts its indemnification liability to the indemnified party Indemnified Party with respect to the Third Party Claim or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified loss identified in the Claim Notice Notice, as finally determined, will be conclusively deemed a liability of the indemnifying party Indemnifying Party and the indemnifying party Indemnifying Party shall pay the amount of such Loss loss to the indemnified party Indemnified Party on demand. If the indemnifying party has Indemnifying Party timely disputed disputes its liability with respect to such claimThird Party Claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim for indemnification against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure or delay by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that an Indemnifying Party is prejudiced by such failure or delay. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss loss indemnified in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such disputedispute and, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Technology Assignment and License Agreement (Apollo Education Group Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 11.03 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnifying Party might seek indemnity under Section 11.03(a) or 11.03(b) is asserted against or sought to be collected from such Indemnified Party by a Person other than Parent, Purchaser or any of their respective Affiliates (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party with reasonable promptnessIndemnifying Party; provided, enclosing a copy however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of all papers served, if any, its obligations hereunder except to the extent (and specifying only to the nature of extent) that such failure shall have caused the Third damages for which the Indemnifying Party Claim, together with is obligated to be greater than such damages would have been had the amount or, if not then reasonably ascertainable, Indemnified Party given the estimated amount, determined in good faith, of the Third Indemnifying Party Claim (a “Claim Notice”)prompt notice hereunder. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party and Indemnified Party under Section 11.03(a) or 11.03(b) or whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.04(a), then the indemnifying party Indemnifying Party will have the right to defend, defend with counsel selected by the Indemnifying Party who shall be reasonably satisfactory acceptable to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at conclusion; provided, however, that the discretion of Indemnifying Party shall obtain the indemnifying party (but only with the prior written consent of the indemnified party Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned) before entering into any settlement of a claim or ceasing to defend such claim. If the Indemnifying Party assumes defense of a Third Party Claim the Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the case of immediately preceding sentence) any settlement thereof; provided, however, that provides for the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any relief time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests and not prejudicial to the Indemnifying Party; provided further, that the Indemnified Party may participate, at its own expense, in the defense of such Third Party Claim; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the payment Indemnified Party or any of monetary damagesits Affiliates). The Indemnified Party will 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, (ii) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate - 55 - representation advisable, or (iii) the Indemnified Party has defenses available to it that are not available to the Indemnifying Party.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to this Section 11.04(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
Indemnified Party (d) with the consent of the Indemnifying Party, which consent will not be unreasonably withheld delayed or conditioned). If the indemnifying party notifies Indemnified Party defends any Third Party Claim, then the indemnified party Indemnifying Party shall be required to reimburse the Indemnified Party for the reasonable costs and expenses of defending such Third Party Claim within 10 Business Days after the date of receipt of any ▇▇▇▇. The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that it does not dispute if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Loss in Indemnifying Party or any of its Affiliates). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnified Party pursuant to this clause (ii), and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed Indemnifying Party will bear its liability own costs and expenses with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionparticipation.
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 11.03(a) or 11.03(b) against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifying Party. The Indemnifying Party shall notify the Indemnified Party within 30 days following its receipt of such notice if the Indemnifying Party disputes its liability to the Indemnified Party under this Article XI. If the indemnifying party notifies the indemnified party that it Indemnifying Party does not dispute so notify the Indemnified Party, the claim described specified by the Indemnified Party in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will notice shall be conclusively deemed to be a liability of the indemnifying party Indemnifying Party under this Article XI, and the indemnifying party Indemnifying Party shall pay the amount of such Loss liability to the indemnified party Indemnified Party on demand. If , or, in the indemnifying party has timely disputed its liability with respect to case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such claim, later date when the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution amount of such dispute, and if not resolved through negotiations within a reasonable period claim (or such portion of time, such dispute shall be resolved by litigation in a court of competent jurisdictionthe claim) becomes finally determined.
Appears in 1 contract
Sources: Purchase Agreement (Joy Global Inc)
Method of Asserting Claims. All claims for indemnification by As used herein, "INDEMNIFYING PARTY" shall refer to the party or parties hereto obligated to indemnify any indemnified party hereunder will be asserted and resolved as follows:Indemnitees under this SECTION 8.
(a) Promptly after any Indemnitee has received notice of or has knowledge of any claim by a Third Party or the commencement of any action, suit or proceeding by a Third Party (collectively, a "THIRD PARTY CLAIM"), the Indemnitee shall, if a claim with respect thereto may be made by the Indemnitee against any Indemnifying Party pursuant to this Section 8, give each Indemnifying Party written notice of such Third Party Claim. Such notice shall state the nature and basis of such Third Party Claim and, if ascertainable, the amount thereof, and shall include copies of all pleadings and other pertinent documents. In each such case the Indemnitee agrees to give such notice to all the Indemnifying Parties promptly in accordance with SECTION 12.2 hereof; provided, however, that the failure of the Indemnitee to give such notice shall not excuse any Indemnifying Party's obligation to indemnify except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnitee's failure to give or delay in giving such notice. The Indemnifying Party or Parties shall have the right, but not the obligation, exercisable by written notice (the "ELECTION NOTICE") given to the Indemnitee within ten (10) Business Days after receipt of such notice from the Indemnitee of such Third Party Claim, to assume the defense and control the settlement of such Third Party Claim, provided that all Indemnifying Parties have acknowledged and agreed in writing that the Indemnifying Parties have an obligation hereunder to provide indemnification to the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party does not give the Election Notice, the Indemnitee shall have the right to defend, contest, settle, or compromise such action or suit in the exercise of its exclusive discretion and shall be entitled to indemnification therefor to the extent provided in SECTION 8.2 or SECTION 8.3, as applicable; provided, however, that the Indemnitee shall not compromise or settle any such Third Party Claim without the prior written consent of the Indemnifying Party or Indemnifying Parties, as applicable, which consent shall not be unreasonably withheld. If the Indemnifying Party gives the Election Notice, the Indemnifying Party shall have the right to settle, compromise, undertake, conduct and control, through counsel of its own choosing and at its sole expense, the conduct and defense of such action, suit or proceeding, and the Indemnitee shall reasonably cooperate with the Indemnifying Party in connection therewith (at the expense of the Indemnifying Party or Indemnifying Parties); provided, however, that (i) the Indemnifying Party shall not thereby consent to the imposition of any injunction against the Indemnitee without the written consent of the Indemnitee; (ii) the Indemnifying Party shall permit the Indemnitee to participate in (but not control) such conduct or settlement through counsel chosen by the Indemnitee, but the fees and expenses of such counsel and the fees, expenses and costs otherwise incurred by the Indemnitee in connection with such participation shall be borne by the Indemnitee except as provided in clause (iii) below; and (iii) upon a final settlement or determination of such action, suit or proceeding, the Indemnifying Party shall promptly reimburse the Indemnitee for the full amount of any Damages resulting from such action, suit or proceeding and all reasonable expenses related to such Damages incurred by the Indemnitee, except fees and expenses of counsel for the Indemnitee incurred after the assumption of the defense and control of such action, suit or proceeding by the Indemnifying Party or Indemnifying Parties. So long as the Indemnifying Party is, or the Indemnifying Parties are, contesting any such action or suit in good faith, the Indemnitee shall not pay or settle any such action or suit. Notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such action or suit, provided that in such event the Indemnitee shall waive any right to indemnity therefor by the Indemnifying Party or the Indemnifying Parties and no amount in respect thereof shall be claimed as Damages under this SECTION 8. At any time after notice of any Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party or the Indemnifying Parties may request the Indemnitee to agree in writing to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature payment or compromise of the Third Party Claim, together with whereupon such action shall be taken unless the amount orIndemnitee determines that the contest should be continued, if not then reasonably ascertainableand so notifies the Indemnifying Party in writing within fifteen (15) days of such request from the Indemnifying Party or the Indemnifying Parties. In the event that the Indemnitee gives such notice, the estimated amount, determined in good faith, of Indemnifying Party or the Indemnifying Parties shall be liable pursuant to this SECTION 8.4(A) with respect to such Third Party Claim only to the extent of the lesser of (a “A) the amount which the other party or parties to the contested Third Party Claim Notice”). The indemnifying party will notify had agreed to accept in complete payment or compromise as of the indemnified party as soon as practicabletime the Indemnifying Party or the Indemnifying Parties made its or their request therefor to the Indemnitee plus the amount of any fine, but in penalty, tax, fee (including any case within 30 days of receipt of a Claim Notice (the “Dispute Period”reasonable legal fee, expert fee, accounting fee or advisory fee), whether charge, cost (including any cost of investigation) or expense of any nature incurred by the indemnifying party disputes its liability Indemnitee to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, such date with respect to defend the indemnified party against such Third Party Claim, or (B) such amount for which the Indemnifying Party or the Indemnifying Parties may be liable with respect to such Third Party Claim by reason of the provisions of this SECTION 8.4(A).
(b) If an Indemnitee shall have any claim pursuant to this SECTION 8, including, but not limited to, a claim for Damages as the indemnifying party notifies result of the indemnified party within Indemnifying Party's failure to acknowledge its obligation to indemnify, the Dispute Period that the indemnifying party desires to defend the indemnified party with respect Indemnitee shall deliver to the Third Indemnifying Party Claim, then or the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Indemnifying Parties a Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party Notice (but only with the consent of the indemnified party in the case of any settlement that provides claim for any relief other than misrepresentation or breach of any warranty pursuant to this SECTION 8) or a notice outlining with reasonable particularity the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously nature and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense amount of the indemnifying party, claim for breach of any covenant or any other claim pursuant to SECTION 8.2 (a "COVENANT BREACH NOTICE"). The Indemnitee and Indemnifying Party or the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnifying Parties shall thereafter attempt in good faith or will for a period of not less than thirty (30) days to agree upon whether the Indemnitee is entitled to be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party and held harmless under this SECTION 8 with respect to Damages as a result of the Third Party Claim, the Loss in the amount specified in claims under the Claim Notice will be conclusively deemed a liability of or the indemnifying party Covenant Breach Notice, as applicable, and the indemnifying party shall pay the amount of extent to which it is entitled to be indemnified and held harmless hereunder for such Loss to the indemnified party on demandDamages. If the indemnifying party has timely disputed its liability with respect to such claimparties cannot so agree within said period, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by Indemnitee may thereafter commence litigation in a court of competent jurisdiction.
(e) In jurisdiction in the event venue designated in SECTION 12.5 for a determination of its claim. Upon resolution of any indemnified party has claim pursuant to this SECTION 8, whether by agreement between the parties or the rendering of a claim against final judgment in any indemnifying party that does not involve a Third Party Claimlitigation, the indemnified party shall Indemnifying Party or the Indemnifying Parties shall, within ten (10) days of such resolution, pay over and deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss Indemnitee funds in the amount specified in of any claim as resolved, and any reasonably documented fees, including reasonable attorneys' fees, incurred by the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnitee with respect to any such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionlitigation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Oil Dri Corporation of America)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Person entitled to indemnification (the "Indemnified Party") under this Article X will be asserted and resolved as follows:
(a) In the event of any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected or withheld from such Indemnified Party by a Person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the indemnified party Indemnified Party shall deliver written notification thereof a notice of its claim (a "Claim Notice") to the indemnifying party with reasonable promptness, enclosing a copy Indemnifying Party within forty (40) calendar days after the Indemnified Party receives written notice of all papers served, if any, and specifying the nature of the such Third Party Claim; provided, together with however, that notice shall be provided to the amount orIndemnifying Party within thirty (30) calendar days after receipt of a complaint, if not then reasonably ascertainable, petition or institution of other formal legal action by the estimated amount, determined in good faith, Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of the such Third Party Claim (a “and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim Notice”)to the extent that the Indemnifying Party demonstrates that it has been materially prejudiced thereby. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 thirty (30) calendar days of after receipt of a the Claim Notice (the “Dispute "Notice Period”), ") whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party (but only Indemnifying Party. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the consent of the indemnified party Indemnifying Party and its counsel in the case of contesting any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period Third Party Claim that the indemnifying party desires Indemnifying Party elects to defend contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its affiliates). 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 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation. The Indemnifying Party shall give sufficient prior notice to the Indemnified Party relating to a settlement of a Third Party Claim to allow the Indemnified Party to participate therein.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Notice Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
(d) If Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the indemnifying party notifies Indemnified Party, the indemnified party that it does not dispute Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Loss in Indemnifying Party or any of its affiliates). Notwithstanding the amount specified in foregoing provisions of this Section 10.4(a)(ii), if the Claim Notice will be conclusively deemed a Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Party with respect to such claimThird Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the indemnifying party Indemnifying Party will not thereafter be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the indemnified party Indemnified Party will proceed reimburse the Indemnifying Party in good faith full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to negotiate a resolution the above terms of such disputethis Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and if not resolved through negotiations within the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionThird Party Claim to allow the Indemnifying Party to participate therein.
(eb) In the event any indemnified party has Indemnified Party should have a claim against any indemnifying party Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness (as hereinafter defined) to the indemnifying partyIndemnifying Party. If the indemnifying party notifies the indemnified party that it (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article X hereof (which claim does not dispute involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in and the amount specified in or the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the estimated amount of such Loss claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the indemnified party on demand. If the indemnifying party extent that an Indemnifying Party demonstrates that it has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionbeen materially prejudiced thereby.
Appears in 1 contract
Sources: Asset Sale Agreement (Integrated Healthcare Holdings)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.1 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.1 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller, Purchaser or any Affiliate of Seller or Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 9.1 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 9.2(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 9.2(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 9.2(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 9.1 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 9.2(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 9.2(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 9.2(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.2(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 9.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 9.2(c).
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 9.1 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 9.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with Section 9.2(c).
(c) Any dispute submitted to arbitration pursuant to this Section 9.2 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for such purpose by the Indemnified Party. The Board of Arbitration shall meet in Alameda, California or in Princeton, New Jersey 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) 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 (30) 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 court of competent jurisdiction. Each party to any arbitration shall bear its own expense 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 Party 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 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Parent or Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 11.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under Section 11.01 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 11.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 11.02(a)(i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's reasonable judgment, the Indemnified Party should be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party reasonably determines that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 11.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner Indemnified Party vigorously and in good faith diligently or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed attempt in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 11.02(c).
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 11.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed attempt in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with Section 11.02(c).
(c) Any dispute submitted to arbitration pursuant to this Section 11.02 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the International Chamber of Commerce upon application made to it for a third member jointly by the Indemnified Party and the Indemnifying Party. Each member of the Board of Arbitration shall have knowledge and expertise in the subject matter of the arbitration proceeding. The Board of Arbitration shall meet in New York, New York 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) 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 (30) 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 court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the member of the Board of Arbitration appointed by such party, provided, however, that the expenses and fees of the third member of the Board of Arbitration and any other expenses of the Board of Arbitration not capable of being attributed to any one member shall be borne in equal parts by the Indemnifying Party and the Indemnified Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Standard Microsystems Corp)
Method of Asserting Claims. (a) All claims for indemnification by any indemnified party hereunder will an Indemnified Person pursuant to this Section 6 shall be asserted and resolved as follows:
(a) In made in accordance with the event provisions of any Third Party Claim, the indemnified party shall deliver written notification thereof Escrow Agreement to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against extent such Third Party Claimprovisions are applicable.
(b) If Except as set forth in subsection (c) below, if a third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Section 6, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the indemnifying Indemnification Representative, (ii) such Indemnified Person may make a claim for indemnification pursuant to this Section 6 in accordance with the provisions of the Escrow Agreement, and (iii) such Indemnified Person shall be reimbursed, in accordance with the provisions of the Escrow Agreement, for any such Damages for which it is entitled to indemnification pursuant to this Section 6 (subject to the right of the Indemnification Representative to dispute the Indemnified Person's entitlement to indemnification under the terms of this Section 6).
(c) The Indemnified Person shall give prompt written notification to the Indemnification Representative of the commencement of any action, suit or proceeding relating to a third party notifies claim for which indemnification pursuant to this Section 6 may be sought; provided, however, that no delay on the indemnified party within part of the Dispute Period that Indemnified Person in notifying the indemnifying party desires Indemnification Representative shall relieve the Majority Shareholders of any liability or obligation hereunder except to the extent any damage, liability or actual prejudice to the rights of the Majority Shareholders or the ability of the Indemnification Representative to defend any such claim is caused by or arises out of such failure. Within 15 days after delivery of such notification, the indemnified party with respect Indemnification Representative may, upon written notice thereof to the Third Party ClaimIndemnified Person, then assume control of the indemnifying party will have the right to defenddefense of such action, suit or proceeding with counsel reasonably satisfactory to the indemnified partyIndemnified Person, at provided the sole cost and expense of Indemnification Representative acknowledges in writing to the indemnifying partyIndemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such Third Party Claim by all appropriate proceedingsaction, suit or proceeding constitute Damages for which proceedings will the Indemnified Person shall be vigorously and diligently prosecuted by the indemnifying party entitled to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) indemnification pursuant to this Section 6. If the indemnifying Indemnification Representative does not so assume control of such defense, the Indemnified Person shall control such defense. The party fails to notify not controlling such defense may participate therein at its own expense; provided that if the indemnified party within Indemnification Representative assumes control of such defense and the Dispute Period Indemnified Person reasonably concludes that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party parties and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Person have conflicting interests or materially different defenses available with respect to such claimaction, suit or proceeding, the indemnifying reasonable fees and expenses of counsel to the Indemnified Person shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the indemnified party will proceed defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Person shall not agree to negotiate a resolution any settlement of such disputeaction, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In suit or proceeding without the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability prior written consent of the indemnifying party and the indemnifying party Indemnification Representative, which shall pay the amount not be unreasonably withheld. The Indemnification Representative shall not agree to any settlement of such Loss to action, suit or proceeding without the indemnified party on demand. If prior written consent of the indemnifying party has timely disputed its liability with respect to such claimIndemnified Person, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if which shall not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionunreasonably withheld.
Appears in 1 contract
Sources: Merger Agreement (Open Market Inc)
Method of Asserting Claims. The party making a claim under this Article 5 is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article 5 is referred to as the "Indemnifying Party". All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article 5 shall be asserted and resolved as follows:
(a) In the event Whenever an Indemnified Party becomes aware of any Third a claim for which an Indemnifying Party Claimwould be liable to an Indemnified Party hereunder, the indemnified party Indemnified Party shall deliver written notification with reasonable promptness notify in writing the Indemnifying Party of such claim, identifying the representation or warranty on which such claim is based, the basis for such claim or demand, and the amount or the estimated amount thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature extent then determinable (which estimate shall not be conclusive of the Third Party Claim, together with final amount of such claim and demand; the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “"Claim Notice”"). The indemnifying party will notify the indemnified party as soon as practicable; provided, but in that any case within 30 days of receipt of failure to give a Claim Notice (will not be deemed a waiver of any rights of the “Dispute Period”), whether the indemnifying party disputes its liability Indemnified Party except to the indemnified party extent the rights of the Indemnifying Party are actually prejudiced by such failure. If the basis of such claim is a claim or demand by a third party, the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party) to represent the Indemnified Party and whether shall pay the indemnifying party desiresreasonable fees and disbursements of such counsel with regard thereto; provided, at its sole cost and expensethat any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to defend retain counsel, whose fees and expenses shall be at the indemnified expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by either party against without the prior written consent of the other party (which consent shall not be unreasonably withheld) unless, as part of such Third settlement, the Indemnified Party Claimshall receive a full and unconditional release reasonably satisfactory to such Indemnified Party.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires Whenever any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim be collected from it by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying third party, the Third Indemnified Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in shall send a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionIndemnifying Party.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under SECTION 4.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under SECTION 4.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Third Party ClaimAffiliate of Seller or of Purchaser (a "THIRD PARTY CLAIM"), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”)Indemnifying Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 4.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 4.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under SECTION 4.01 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnifying Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnifying Party will bear its own costs and expenses with respect to such separate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 4.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to SECTION 4.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 4.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 4.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under SECTION 4.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 4.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Beneficial Interest Purchase Agreement (Lease Investment Flight Trust)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than any of the Shareholders or Atmos or any of their respective Affiliates (a "Third Party Claim"), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party with reasonable promptness, enclosing a copy Indemnifying Party and the failure to do so shall not relieve the Indemnifying Party of all papers served, if any, and specifying its obligations in respect thereof except to the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”)extent it is materially harmed thereby. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 11.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (without the consent of the Indemnified Party if a full release is obtained by the Indemnified Party and all amounts payable in the settlement are paid by the Indemnifying Party, but only with the consent of the indemnified party Indemnified Party in any other case, including the case of any settlement that provides for any relief other than the payment of monetary damages). The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests and not prejudicial to the Indemnifying Party; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except as provided in the preceding sentence. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control -49- of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim or the proceedings are not being diligently prosecuted by the Indemnifying Party.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails Claim pursuant to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute PeriodSection 11.02(a), then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified partyIndemnified Party (without the consent of the Indemnifying Party, unless the Indemnifying Party confirms in writing its obligation to indemnify the Indemnified Parties for such Claim, in which case the consent of the Indemnifying Party shall be required but shall not be unreasonably withheld or delayed). The Indemnified Party will have full control of such defense and proceedings, including any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnifying Party or any of its Affiliates). Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and -50- if not resolved through negotiations, either party may seek a resolution of such dispute by litigation in a court of competent jurisdiction.
(iv) Notwithstanding the foregoing, the Shareholders shall not have the right to defend any Flash Fire / Explosion Claim, except as to any issue of any extent of the Company's insurance coverage in respect thereof.
(b) In the event any Indemnified Party should have a claim under Section 11.01 against any Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to the Indemnifying Party, and the failure to do so shall not relieve the Indemnifying Party of its obligations in respect thereof except to the extent it is materially harmed thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within negotiations, either party may seek a reasonable period resolution of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(ec) In the event of any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claimfor indemnity under Section 11.01(a), the indemnified party shall deliver a Claim Notice with Atmos agrees to give each Shareholder and their respective Representatives reasonable promptness access to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability Books and Records and employees of the indemnifying party Company and the indemnifying party shall pay Subsidiaries in connection with the amount of such Loss matters for which indemnification is sought to the indemnified party on demand. If the indemnifying party has timely disputed extent such Shareholder and its liability Representatives reasonably deem necessary in connection with respect to such claim, the indemnifying party its rights and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionobligations under this Article XI.
Appears in 1 contract
Sources: Merger Agreement (Atmos Energy Corp)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Article VIII shall be asserted and resolved as follows:
(a) In the event of If an Indemnified Party intends to seek indemnification under this Article VIII for any matter not involving a Third Party Claim, it shall promptly notify the indemnified party Indemnifying Party in writing of the facts and circumstances giving rise to such claim. Such notice shall deliver written notification thereof specify in reasonable detail (to the indemnifying extent practicable based on information reasonably available at such time) the basis of the claim.
(b) In the event that a claim by a third party with reasonable promptness, enclosing against the Indemnified Party (a copy of all papers served, if any“Third Party Claim”) is brought against an Indemnified Party for which indemnification is provided under this Article VIII, and specifying such Indemnified Party intends to seek such indemnity, then such Indemnified Party shall, promptly (but in any event within thirty (30) days of receipt of such Third Party Claim or ten (10) days after receipt in the nature event the Third Party Claim is in the form of a formal complaint filed with a court of competent jurisdiction and served on an Indemnified Party), notify the Indemnifying Party in writing of such Third Party Claim, together with which notice shall specify in reasonable detail (to the amount orextent practicable based on information reasonably available at such time) the facts and circumstances pertaining thereto and the basis for the Indemnified Party’s right to indemnification; provided, if however, that any delay or failure by such Indemnified Party to give such notice will not then reasonably ascertainableaffect any rights hereunder except to the extent the Indemnifying Party is materially prejudiced by such delay or failure. Subject to Section 8.5(d), the estimated amount, determined Indemnifying Party shall have thirty (30) days after receipt of such notice (or ten (10) days after the receipt of such notice from the Indemnified Party in good faith, of the event the Third Party Claim (is in the form of a “Claim Notice”). The indemnifying party will formal complaint filed with a court of competent jurisdiction and served on an Indemnified Party) to notify the indemnified party as soon as practicable, but in any case within 30 days Indemnified Party of receipt its intent to defend such Third Party Claim through counsel reasonably acceptable to the Indemnified Party and at the expense of a Claim Notice (the “Dispute Period”Indemnifying Party. Subject to Section 8.5(d), whether upon delivery of such notice, (i) the indemnifying party disputes Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection therewith, (ii) the Indemnified Party shall be permitted to participate in such settlement or defense through counsel chosen by it in its liability to the indemnified party and whether the indemnifying party desires, sole discretion at its sole cost expense; provided, however, that the Indemnifying Party shall be responsible for such expense if (A) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (B) if, following petition by an Indemnified Party, a court of competent jurisdiction determines that a diligent, good faith defense is not being, or ceases to be, conducted by the Indemnifying Party, and expense, (iii) the Indemnifying Party shall be entitled to defend assume the indemnified party against defense and settlement of such Third Party Claim.
(bc) The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement or consent to entry of any judgment, in each case, unless such settlement or consent does not contain any admission of guilt or wrongdoing on the part of the Indemnified Party, does not by its terms include any specific restriction on the Indemnified Party or its Affiliates or the conduct of their respective businesses, is entirely indemnifiable by the Indemnifying Party pursuant to this Article VIII and includes as a term thereof the giving by the Person or Persons asserting such Third Party Claim to all Indemnified Parties of an unconditional release from all liability with respect to such Third Party Claim. Subject to Section 8.5(d), so long as the Indemnifying Party is reasonably contesting any such Third Party Claim in good faith, the Indemnified Party shall not pay or settle any Third Party Claim for which the Indemnifying Party has undertaken the defense unless it irrevocably waives its rights to indemnity under this Article VIII with respect to such claim or unless the Indemnifying Party shall have consented in writing to such payment or settlement.
(d) Notwithstanding anything to the contrary contained in Section 8.5(b) or Section 8.5(c), the Indemnifying Party shall not have the option to assume the defense of a Third Party Claim if (i) the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a Third Party Claim hereunder (or ten (10) Business Days after the receipt of any notice from the Indemnified Party in the event the Third Party Claim is in the form of a formal complaint filed with a court of competent jurisdiction and served on an Indemnified Party) that it elects to undertake the defense thereof, (ii) the Indemnifying Party elects to undertake the defense thereof but thereafter following petition by an Indemnified Party, a court of competent jurisdiction determines that a diligent, good faith defense is not being, or ceases to be, conducted by the Indemnifying Party, (iii) the principal remedy sought by a Third Party Claim includes a remedy other than money damages or (iv) a Third Party Claim seeks monetary damages in an amount that based on an objective reasonable valuation would exceed the then remaining limit on the Indemnifying Party’s liability under Section 8.2 or Section 8.3, as applicable, or would be payable in part by the Indemnified Party if the monetary damages sought constitute more than fifty percent (50%) of such monetary damages sought, assuming all other pending claims for indemnification under Section 8.2 or Section 8.3, as applicable, would be paid in the amounts set forth in the claims set forth by the Indemnified Parties, the Indemnified Party shall have the right, at the Indemnifying Party’s expense, to defend such Third Party Claim (upon providing further written notice to the Indemnifying Party), subject to the right of the Indemnifying Party to approve the counsel selected by the Indemnified Party (“Indemnified Party Counsel”), which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, that the Indemnified Party shall not settle, compromise or offer to settle or compromise, or admit any liability with respect to any such Third Party Claim without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(e) If the indemnifying party notifies Indemnified Party wishes to admit liability or agree or compromise in respect of any Third Party Claim it is defending pursuant to Section 8.5(d), it must provide a written notification to the indemnified party within Indemnifying Party specifying the Dispute Period that course of action proposed by the indemnifying party desires Indemnified Party to defend be taken (including the indemnified party amount of any proposed settlement) and obtain a written consent from the Indemnifying Party to proceed with such course of action. If the Indemnifying Party does not consent to the intended course of action, it shall notify the Indemnified Party of the reasons therefor, as well a proposed course of action in respect of any proposed admission of liability, agreement or compromise with respect to the Third Party Claim, then the indemnifying party will have the right to defendwhich, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted if followed by the indemnifying party Indemnified Party shall be deemed to a final conclusion or will be settled at an action taken by the discretion of the indemnifying party (but only Indemnified Party with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages)Indemnifying Party.
(cf) If The Indemnifying Party and the indemnifying party fails to notify Indemnified Party shall reasonably cooperate with each other in all reasonable respects in connection with the indemnified party within the Dispute Period that the indemnifying party desires to defend the defense of any Third Party Claim, or if the indemnifying party gives including making available records relating to such notice but fails to prosecute vigorously claim and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense furnishing such employees of the indemnifying party, Indemnified Party as may be reasonably necessary for the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion preparation of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss defense of any such claim or for testimony as witnesses in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect any proceeding relating to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) . In the event any indemnified party has a claim against any indemnifying party that does not involve connection with a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness Indemnifying Party or the Indemnified Party, as applicable, will, to the indemnifying party. If extent requested, reasonably cooperate with the indemnifying party notifies Indemnified Party or the indemnified party that it does not dispute the claim described Indemnifying Party, respectively, to assert appropriate defenses in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claimrespect of statutes of limitations, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionreasonably applicable.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ares Commercial Real Estate Corp)
Method of Asserting Claims. The Party making a claim under this Section, or any other indemnity provision herein, is hereinafter referred to as the "Indemnified Party" and the Party against whom such claims are asserted is hereinafter referred to as the "Indemnifying Party". All claims for indemnification by any indemnified party hereunder will an Indemnified Party shall be asserted and resolved as follows:
(i) If any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, such Indemnified Party shall as promptly as is practicable after its receipt of such claim or demand, deliver a Claim Notice to the Indemnifying Party; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent that either the rights of the Indemnifying Party are actually prejudiced or such notice is not given within the applicable time periods set forth in this Agreement. The Indemnifying Party may, and upon request of the Indemnified Party shall, retain counsel of its choice to represent the Indemnified Party and any others the Indemnifying Party may reasonably designate in connection with such claim or demand and shall pay the fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel to retain counsel whose reasonable fees and expenses shall be at the expense of the Indemnifying Party to file any action, answer or other pleading and take such other action which it shall reasonably deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party. In the event that the Indemnifying Party shall retain such counsel, the Indemnified 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 Indemnified Party unless:
(a) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel; or
(b) the named parties to any such proceeding (including, but not limited to, any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would involve such counsel in an actual or potential conflict of interest in violation of applicable principles of professional ethics.
(ii) If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand that the Indemnifying Party defends, 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. If the Indemnifying Party has accepted responsibility in writing, no claim or demand that would result in an Indemnifying Party being liable hereunder may be settled without the consent of the Indemnifying Party which consent shall not be unreasonably withheld. Unless the Indemnifying Party shall have agreed in writing that any and all damages to the Indemnified Party related to a claim or demand are fully covered by the indemnities provided herein, no such claim or demand may be settled without the consent of the Indemnified Party, which consent will not be unreasonably withheld. Except with respect to settlements entered into without the Indemnified Party's consent pursuant to the immediately preceding sentence, to the extent it shall be determined that the Indemnified Party shall have no right pursuant to this Section to be indemnified by the Indemnifying Party, the Indemnified Party shall promptly pay to the Indemnifying Party:
(a) any amounts previously paid or advanced by the Indemnifying Party to the Indemnified Party with respect to such matters pursuant to this Section; plus
(b) interest thereon until paid by the Indemnified Party at the Interest Rate for the period commencing on the date on which such amount was paid or advanced and ending sixty (60) days after the date on which such amount was paid or advanced and ending sixty (60) days after the date on which it was finally determined that the Indemnified Party had no such right to be indemnified.
(iii) In the event of any Third the Indemnified Party Claimshould have a claim against the Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the indemnified party Indemnified Party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon promptly as practicable, but in any case within 30 days of receipt of is practical send a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory such claim to the indemnified partyIndemnifying Party; provided, at the sole cost and expense however, that any failure to give such notice will not waive any rights of the indemnifying party, such Third Indemnified Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by except to the indemnifying party to a final conclusion or will be settled at extent that either the discretion rights of the indemnifying party (but only with Indemnifying Party are actually prejudiced or such notice is not given within the consent of the indemnified party applicable time periods set forth in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) this Agreement. If the indemnifying party fails to notify Indemnifying Party notifies in writing the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Indemnified Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claimsuch claim, the Loss in the amount specified in the Claim Notice will of such claim shall be conclusively deemed a liability of the indemnifying party Indemnifying Party hereunder and the indemnifying party shall pay the amount of such Loss be paid to the indemnified party on demandIndemnified Party immediately. If the indemnifying party has timely disputed its liability with respect to Indemnifying Party disputes such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictiongood faith negotiations between the Parties.
(eiv) In From and after the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver delivery of a Claim Notice with hereunder, at the reasonable promptness request of the Indemnifying Party, the Indemnified Party shall grant the Indemnifying Party and its representatives full and complete access to the indemnifying party. If books, records and properties of the indemnifying party notifies Indemnified Party to the indemnified party that it does not dispute extent reasonably related to the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in matters with which the Claim Notice is concerned. The Indemnifying Party will not, and shall require that its representatives do not, use (except in connection with such Claim Notice) or disclose to any third Person other than the Indemnifying Party's representatives (except as may be conclusively deemed required by law) any information obtained that is designated as confidential by the Indemnified Party, unless such information is:
(a) generally available to the public other than as the result of a liability wrongful act or omission by the Indemnifying Party;
(b) already within the knowledge of the indemnifying party and the indemnifying party shall pay the amount of such Loss Indemnifying Party;
(c) available to the indemnified Indemnifying Party through other Sections herein, or
(d) provided to the Indemnifying Party in writing by a third party on demandwho is under no obligation to the Indemnified Party to protect the confidentiality thereof. If All such access shall be granted during normal business hours, shall be subject to the indemnifying party has timely disputed its liability normal safety regulations of the Indemnified Party, and shall be granted under conditions that will not interfere with the business and operations of the Indemnified Party. Nothing contained in this Section shall be construed to expand or reduce the rights or obligations of the Indemnifying Party with respect to such claim, any information previously provided to the indemnifying party and the indemnified party will proceed in good faith Indemnifying Party pursuant to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionany other confidentiality agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Quicksilver Resources Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under this Article IX will be asserted and resolved as follows:
(ai) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this Article IX is asserted against or sought to be collected from such Indemnified Party by a Person other than ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or Limestone or any Affiliate of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or of Limestone (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party with reasonable promptnessIndemnifying Party; provided, enclosing a copy of all papers servedhowever, if any, and specifying that the nature failure of the Third Indemnified Party Claimto give timely notice or to make timely delivery of any such notice shall not relieve the Indemnifying Party of its indemnification obligations with respect to such claim, together with suit or proceeding except to the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third extent that such Indemnifying Party Claim (a “Claim Notice”)has been actually prejudiced thereby. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case reasonably practicable within 30 days of receipt of a Claim Notice the Dispute Period (the “Dispute Period”), i) whether the indemnifying party Indemnifying Party disputes its liability Liability to the indemnified party Indemnified Party under this Article IX and (ii) whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Agreement, then the indemnifying party Indemnifying Party will have the right to defenddefend against, negotiate, settle or otherwise deal with, with counsel of its choice that is reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously actively and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period Indemnified Party, which consent will not be unreasonably withheld, provided that the indemnifying party desires consent of the Indemnified Party shall not be required if the settlement imposes only monetary obligations and includes a complete release of the Indemnified Party from further Liability). The Indemnifying Party will have full control of such defense and proceedings to defend the extent they relate to the Third Party Claim, or if including (except as provided in the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle immediately preceding sentence) any settlement thereof; provided, however, that the Third Indemnified Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defendmay, at the sole cost and expense of the indemnifying partyIndemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in this Agreement, file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party) at the Indemnified Party’s sole cost and expense. Notwithstanding the foregoing, the Indemnified Party may, by written notice to the Indemnifying Party, retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under this Agreement and fully releases the Indemnifying Party with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim, then the Indemnified Party will have the right to defend against, negotiate, settle or otherwise deal with, at the reasonable cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be actively and diligently prosecuted by the indemnified party in Indemnified Party to a reasonable manner and final conclusion in good faith or will be settled in good faith at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Agreement, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its Liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such Dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such Actions. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability Liability to the indemnified party Indemnified Party with respect to the Third Party Claim or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its Liability to the Indemnified Party with respect to such Third Party Claim, the Loss in of the amount specified in the Indemnified Party arising from such Third Party Claim Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party on demandIndemnified Party within ten (10) days following written demand by the Indemnified Party following the final determination thereof in accordance with the procedures set forth in this Agreement. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such disputedispute (including by mediation or arbitration, and if not resolved through negotiations within a reasonable period of time, necessary) while simultaneously defending such dispute shall be resolved by litigation in a court of competent jurisdictionThird Party Claim.
(eii) In the event any indemnified party has Indemnified Party should have a claim against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifying Party; provided, that the failure of the Indemnified Party to give timely notice or to make timely delivery of any such notice shall not relieve the Indemnifying Party of its indemnification obligations with respect to such claim, suit or proceeding except to the extent that such Indemnifying Party has been actually prejudiced thereby. The Indemnifying Party will notify the Indemnified Party as soon as reasonably practicable within the Dispute Period whether the Indemnifying Party disputes its Liability to the Indemnified Party. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in of the amount Indemnified Party arising from the claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party on demandIndemnified Party within ten (10) days following written demand by the Indemnified Party following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such disputedispute (including by mediation or arbitration, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionnecessary).
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by -------------------------- any indemnified party hereunder Indemnified Party under Section 11.01 will be asserted and resolved as ------------- follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against ------------- or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Purchaser (a "Third Party Claim"), the ----------------- Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 11.01 and whether the indemnifying party Indemnifying Party ------------- desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.02(a), then the indemnifying party Indemnifying Party will have the right to ---------------- defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under Section 11.01 with respect to any Third Party Claim ------------- as to which it elects to control the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, -------- ------- at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 11.02(a)(i), file any motion, ------------------- answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section ------- 11.02
(a) (i), and the Indemnified Party will bear its own costs and expenses ----------- with respect to such separate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party ------------- Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 11.02(a), or if ---------------- the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 11.02(a)(ii), if -------------------- the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 11.02(a)(ii) or of the Indemnifying Party's participation -------------------- therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.02(a)(ii), and the Indemnifying Party will bear its own costs -------------------- and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to ----------- notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such ------------- Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdiction.accordance with Section ------- 11.02(c). --------
(eb) In the event any indemnified party has Indemnified Party should have a claim under Section 11.01 against any indemnifying party Indemnifying Party that does not involve a Third Party ------------- Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 ------------- and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with Section 11.02(c). ----------------
(c) Any dispute submitted to arbitration pursuant to this Section ------- 11.02 shall be finally and conclusively determined by the decision of a board of ----- arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the -------------------- Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) 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 (30) 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 court of competent jurisdiction. Each party to any arbitration shall bear its own expense 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 Party 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 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under this Section 14 will be asserted and resolved as follows:
(ai) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this Section 14 is asserted against or sought to be collected from such Indemnified Party by a person or entity other than Contributor, Acquiror or any Affiliate of the Contributor or Acquiror (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice (as defined below) with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice the Dispute Period (the “Dispute Period”), as defined below) whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under this Section 14 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(ba) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 14C(i), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Section 14). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (a), may file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party, at the sole cost and expense of the Indemnifying Party, will provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (a), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Section 14 with respect to such Third Party Claim.
(cb) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 14C(i), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (b), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (c) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (b) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (b), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(dc) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under this Section 14 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Section 14 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (iii) of competent jurisdiction.this Section 14C.
(eii) In the event any indemnified party has Indemnified Party should have a claim under this Section 14C against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice (as defined below) with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Section 14 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with paragraph (iii) of this Section 14C.
(iii) Any dispute submitted to arbitration pursuant to this Section 14C shall be finally and conclusively determined by the decision of a court board of competent jurisdiction.arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for such purpose by the Indemnified
Appears in 1 contract
Sources: Contribution Agreement (American Real Estate Investment Corp)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will Indemnified Party under Section 10.01 shall be asserted and resolved only as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 10.01 or as to which Seller's Threshold may be applied is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party and in any event within 30 days of the time such Indemnified Party learns of such claim or demand. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been actually prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 10.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration, in accordance with Section 10.02(c).
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 10.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at Indemnifying Party. The Indemnifying Party shall not, without the discretion of the indemnifying party (but only with the prior written consent of the indemnified party in the case of Indemnified Party, consent to any settlement that provides (i) does not contain an unconditional release of the Indemnified Party from the subject matter of the settlement, or (ii) 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 Company. The Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 10.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests without such actions being construed as a waiver of the Indemnified Party's rights to defense and indemnification pursuant to the Agreement. If requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section (a)(i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any relief other than Third Party Claim the payment defense of monetary damages)which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 10.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 10.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party without in any way waiving or otherwise affecting the Indemnified Party's rights to indemnification pursuant to this Agreement. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 10.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section and the indemnifying party Indemnifying Party shall pay the amount of such Loss (subject to the indemnified party Seller's Threshold and the Cap, if applicable) to the Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 10.02(c).
(eb) In the event any indemnified party Indemnified Party has a claim under Section 10.01 or as to which Seller's Threshold may be applied against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party and in any event within 30 days of the time such Indemnified Party learns of such claim. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been actually prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 10.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss (subject to the indemnified party Seller's Threshold and the Cap, if applicable) to the Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration, in accordance with Section 10.02(c).
(c) All disputes between the parties arising under this Article X shall be finally resolved by binding arbitration in Indianapolis, Indiana before a court single arbitrator, unless either party elects to have such dispute resolved before a panel of competent jurisdictionthree arbitrators, appointed pursuant to the rules of the American Arbitration Association (the "AAA") then in effect applicable to commercial disputes. Arbitration may be commenced at any time by any party hereto giving written notice to the other party to a dispute that such dispute has been referred to arbitration under this Section 10.02(c). The arbitrator(s) shall be selected by the joint agreement of Seller and Purchaser, but if they do not so agree within twenty (20) days after the date of the notice referred to above, the selection shall be made pursuant to the rules and from the panels of arbitrators maintained by the AAA. Any award rendered by the arbitrator(s) shall be conclusive and binding upon the parties hereto and may be enforced in accordance with the laws of the State of Indiana; provided, however, that any such award shall be accompanied by a written opinion of the arbitrator(s) giving the reasons for the award. Each party shall pay its own expenses of arbitration and the expenses of the arbitrator(s) shall be equally shared; provided, however, that if in the opinion of the arbitrator(s) any claim for indemnification or any defense or objection thereto was unreasonable, the arbitrator(s) may assess, as part of his or her award, all or any part of the arbitration expenses of the other party (including reasonable attorneys' fees) and of the arbitrator(s) against the party raising such unreasonable claim, defense or objection.
Appears in 1 contract
Sources: Stock Purchase Agreement (Trump Entertainment Resorts Funding Inc)
Method of Asserting Claims. All claims for -------------------------- indemnification by any indemnified party hereunder Indemnified Party under this Article IX will be asserted and resolved as follows:
(a) In the event any claim or demand is asserted against or sought to be collected from an Indemnified Party by a person other than the Seller, the Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of any its claim (a "Claim Notice") to the Indemnifying Party within fifteen (15) calendar days of receipt of notice of such Third Party Claim by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within fifteen (15) calendar days after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)if the Indemnifying Party's ability to defend has been materially prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 thirty (30) calendar days of after receipt of a the Claim Notice (the “Dispute "Notice Period”), ") whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent Indemnifying Party. The Indemnifying Party will have full control of the indemnified party in the case of such defense and proceedings, including any compromise or settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period thereof; provided that the indemnifying party Indemnified Party may, at its -------- sole cost and expense, file during the Notice Period prior to the time the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party (it being understood and agreed that, except as provided in subsection (a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action); and provided further that 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, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). 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 9.4(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 9.4(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Notice Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the a Third Party Claim by all appropriate proceedings, which proceedings will be promptly and vigorously prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
Indemnified Party (d) If with the indemnifying party notifies consent of the indemnified party Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided that it does not dispute if requested by the -------- Indemnified Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-compliant against any person (other than the Loss Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this subsection, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in, favor of the Indemnifying Party in the manner provided in subsection (b) of this Section, the Indemnifying Party will 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 will reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with 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, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article IX hereof (which claim does not involve a Third Party Claim or is a Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 9.4, specifying the nature of and specific basis for such claim and the amount specified in or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days following its receipt of a Claim Notice or an Indemnity Notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party will be conclusively deemed a liability of the indemnifying party Indemnifying Party hereunder and the indemnifying party Indemnifying Party shall pay the amount of such Loss liability to the indemnified party Indemnified Party on demand, or on such later date (i) in the case of a Third Party Claim, as the Indemnified Party suffers Damages in respect of such Third Party Claim, (ii) in the case of an Indemnity Notice in which the amount of the claim is estimated, when the amount of such claim becomes finally determined or (iii) in the case of a Tax Claim, within fifteen (15) days following final determination of the item giving rise to the claim for indemnity. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the indemnifying party Indemnifying Party and the indemnified party will Indemnified Party agree to proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timenegotiations, such dispute shall may be resolved by litigation in a an appropriate court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Asset Purchase Agreement (Community Psychiatric Centers /Nv/)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under this Article VII will be asserted and resolved as follows:
(ai) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this Article VII is asserted against or sought to be collected from such Indemnified Party by a Person other than UMS or Talk or any Affiliate of UMS or of Talk (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof a claim notice with reasonable promptness to the indemnifying party with reasonable promptnessIndemnifying Party; provided, enclosing a copy of all papers servedhowever, if any, and specifying that the nature failure of the Third Indemnified Party Claimto give timely notice or to make timely delivery of any such notice shall not relieve the Indemnifying Party of its indemnification obligations with respect to such claim, together with suit or proceeding except to the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third extent that such Indemnifying Party Claim (a “Claim Notice”)has been actually prejudiced thereby. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case reasonably practicable within 30 days of receipt of a Claim Notice the Dispute Period (the “Dispute Period”), i) whether the indemnifying party Indemnifying Party disputes its liability Liability to the indemnified party Indemnified Party under this Article VII and (ii) whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Agreement, then the indemnifying party Indemnifying Party will have the right to defenddefend against, negotiate, settle or otherwise deal with, with counsel of its choice that is reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously actively and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period Indemnified Party, which consent will not be unreasonably withheld, provided that the indemnifying party desires consent of the Indemnified Party shall not be required if the settlement imposes only monetary obligations and includes a complete release of the Indemnified Party from further Liability). The Indemnifying Party will have full control of such defense and proceedings to defend the extent they relate to the Third Party Claim, or if including (except as provided in the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle immediately preceding sentence) any settlement thereof; provided, however, that the Third Indemnified Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defendmay, at the sole cost and expense of the indemnifying partyIndemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in this Agreement, file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party) at the Indemnified Party’s sole cost and expense. Notwithstanding the foregoing, the Indemnified Party may, by written notice to the Indemnifying Party, retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under this Agreement and fully releases the Indemnifying Party with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim, then the Indemnified Party will have the right to defend against, negotiate, settle or otherwise deal with, at the reasonable cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be actively and diligently prosecuted by the indemnified party in Indemnified Party to a reasonable manner and final conclusion in good faith or will be settled in good faith at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Agreement, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its Liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such Dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such Actions. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability Liability to the indemnified party Indemnified Party with respect to the Third Party Claim or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its Liability to the Indemnified Party with respect to such Third Party Claim, the Loss in of the amount specified in the Indemnified Party arising from such Third Party Claim Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party on demandIndemnified Party within ten (10) days following written demand by the Indemnified Party following the final determination thereof in accordance with the procedures set forth in this Agreement. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such disputedispute (including by mediation or arbitration, and if not resolved through negotiations within a reasonable period of time, necessary) while simultaneously defending such dispute shall be resolved by litigation in a court of competent jurisdictionThird Party Claim.
(eii) In the event any indemnified party has Indemnified Party should have a claim against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifying Party; provided, that the failure of the Indemnified Party to give timely notice or to make timely delivery of any such notice shall not relieve the Indemnifying Party of its indemnification obligations with respect to such claim, suit or proceeding except to the extent that such Indemnifying Party has been actually prejudiced thereby. The Indemnifying Party will notify the Indemnified Party as soon as reasonably practicable within the Dispute Period whether the Indemnifying Party disputes its Liability to the Indemnified Party. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in of the amount Indemnified Party arising from the claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party on demandIndemnified Party within ten (10) days following written demand by the Indemnified Party following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such disputedispute (including by mediation or arbitration, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionnecessary).
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 1.06, 11.01 or 11.02 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnifying Party might seek indemnity under this Article XI is asserted against or sought to be collected from such Indemnified Party by a Person other than Shareholders, ▇▇▇▇▇, Bancorp or any Affiliate of Shareholders or Bancorp (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party and, if applicable, the Escrow Agent. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under this Article XI and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party Claim, then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this subsection, file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 subsection, and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article XI with respect to such Third Party Claim.
(c) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 11.03(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this subsection, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in subsection (d) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this subsection or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this subsection, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(d) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Article XI or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article XI and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has Indemnified Party should have a claim under this Article XI against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article XI and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Sources: Merger Agreement (Bancorp, Inc.)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will Indemnified Party under Section 8.3 shall be asserted and resolved as follows:
(aA) In the event of any claim or demand for which an Indemnifying Party would be liable for Damages to an Indemnified Party under Section 8.3 hereof is a Third Party Claim, the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party Indemnifying Party; provided, however, that except as set forth in Section 8.4(D) hereof, no Claim Notice will be required with reasonable promptnessrespect to any action, enclosing a copy suit or proceeding that is in existence and of all papers served, if any, and specifying which the nature of Indemnifying Party has Knowledge on the Closing Date. If the Indemnified Party fails to provide the Indemnifying Party with the Claim Notice required by the preceding sentence at least ten (10) calendar days before the date on which the Indemnifying Party's ability to defend against the Third Party Claim, together with Claim is materially prejudiced by the amount or, if not then reasonably ascertainableIndemnified Party's failure to provide such Claim Notice, the estimated amount, determined in good faith, Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such portion of the Third Party Claim as to which the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party, except where the Indemnified Party itself did not receive the Claim Notice in time to meet the ten (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of 10) day prior notice requirement.
(B) Upon receipt of a Claim Notice, the Indemnifying Party shall notify the Indemnified Party with reasonable promptness, but in all events within fifteen (15) calendar days after receipt thereof ("Notice (the “Dispute Period”"), of whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party hereunder with respect to such Third Party Claim and whether the indemnifying party Indemnifying Party desires, at its the sole cost and expenseExpense of the Indemnifying Party, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bC) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Notice Period or at any time thereafter that the indemnifying party Indemnifying Party does not dispute its liability to the Indemnified Party and that the Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Article VIII, then the indemnifying party will Indemnifying Party shall have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the its sole cost and expense of the indemnifying partyExpense, such Third Party Claim by all appropriate actions, suits and proceedings. Such actions, which suits and proceedings will shall be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the prior written consent of the indemnified party in Indemnified Party, which consent will not be unreasonably withheld or delayed). From the case date of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying partynotice, the Third Indemnifying Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount have full control of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.defense
Appears in 1 contract
Sources: Stock Purchase Agreement (Century Business Services Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under this Article IX will be asserted and resolved as follows:
(a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Article IX in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the event of any Indemnified Party (a "Third Party Claim"), the indemnified party shall Indemnified Party must deliver written notification thereof a claim notice to the indemnifying party with reasonable promptness, enclosing a copy Indemnifying Party within ten (10) Business Days after receipt by such Indemnified Party of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, written notice of the Third Party Claim (a “"Claim Notice”"). The indemnifying party will notify the indemnified party as soon as practicable; provided, but in any case within 30 days of receipt of a however, that failure to give such Claim Notice (shall not affect the “Dispute Period”), whether the indemnifying party disputes its liability indemnification provided hereunder except to the indemnified party and whether extent the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against Indemnifying Party shall have been actually prejudiced as a result of such Third Party Claimfailure.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the a Third Party ClaimClaim is made against an Indemnified Party, then the indemnifying party will have Indemnifying Party shall be entitled to participate in the right defense thereof and, if it so chooses, to defend, assume the defense thereof with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost provided that all
(i) constitutes a complete and expense unconditional discharge and release of the indemnifying partyall Indemnified Parties, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that ii) provides for any no relief other than the payment of monetary damages)damages and such monetary damages are paid in full by the Indemnifying Party, and in all other cases may not so settle without the prior written consent of the Indemnified Party.
(c) If In the indemnifying party fails to notify the indemnified party within the Dispute Period event any Indemnified Party should have a claim under Section 9.1 against any Indemnifying Party that the indemnifying party desires to defend the does not involve a Third Party Claim, or if the indemnifying party gives such notice but fails Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to prosecute vigorously and diligently or settle the Third Indemnifying Party. The failure by any Indemnified Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then Indemnity Notice shall not impair such party's rights hereunder except to the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying party, the Third extent that an Indemnifying Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) demonstrates that it has been actually prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability the claim described in such Indemnity Notice or fails to notify the indemnified party with respect Indemnified Party within the Dispute Period as to whether the Third Indemnifying Party Claimdisputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party under Section 9.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration as provided in a court of competent jurisdictionArticle X.
(d) The rights accorded to Indemnified Parties hereunder shall be in addition to any rights that any Indemnified Party may have at law or in equity, under federal or state securities Laws, but shall be limited to those rights set forth in the Ancillary Documents, or by separate agreement.
(e) In Any payment under this Article IX shall be treated for tax purposes as an adjustment of the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness Purchase Price to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in extent such Claim Notice or fails characterization is proper and permissible under relevant Tax authorities, including court decisions, statutes, regulations and administrative promulgations or, alternatively, by Purchaser as an offset to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claima Tax benefit item, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of if such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to characterization is permissible under such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionTax Authorities.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.1 hereof will be asserted and resolved as follows:
(a) In the event of any claim or demand for which an Indemnifying Party may be liable for Damages to an Indemnified Party under Section 9.1 hereof is asserted against or sought to be collected from such Indemnified Party by a Person other than the Company, GSSW-REO, any Property Partnership, any Purchaser-Related Persons or any Seller-Related Persons ("Third Party Claim"), the indemnified party shall Indemnified Party will deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party Indemnifying Party; provided, however, that except as set forth in Section 9.2(d) hereof, no Claim Notice will be required with reasonable promptnessrespect to any action, enclosing a copy of all papers servedsuit, if anyinvestigation, and specifying or proceeding that is in existence on the nature of Closing Date. If the Indemnified Party fails to provide the Indemnifying Party with the Claim Notice required by the preceding sentence at least 14 calendar days before the date on which the Indemnifying Party's ability to defend against the Third Party Claim, together with Claim is irrevocably prejudiced by the amount or, if not then reasonably ascertainableIndemnified Party's failure to provide such Claim Notice, the estimated amount, determined in good faith, Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such portion of the Third Party Claim (a “Claim Notice”)as to which the Indemnifying Party's ability to defend has been irrevocably prejudiced by such failure of the Indemnified Party; however, the foregoing limitation shall not be applicable as to Third Party Claims of which the Indemnified Party did not have notice prior to such 14th day. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case within 30 days of Indemnified Party with reasonable promptness after the Indemnifying Party's receipt of a Claim Notice, but in all events within 7 calendar days after receipt thereof ("Notice (the “Dispute Period”"), of whether the indemnifying party Indemnifying Party disputes its the liability of the Indemnifying Party to the indemnified party Indemnified Party hereunder with respect to such Third Party Claim and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Third Party Claim, the Indemnifying Party and Indemnified Party will negotiate in good faith for a period of thirty days failing resolution of which the matter shall be submitted for arbitration in accordance with the provisions of Section 9.6 below. A failure of the Indemnifying Party to respond to a Claim Notice within the period required shall be deemed to constitute a dispute of the claim described in such Claim Notice by the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Notice Period or at any time thereafter that the Indemnifying Party (without any reservation of rights) does not dispute its liability to the Indemnified Party and that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this ARTICLE IX (the "Non-Dispute Notice"), or in the event any matter submitted for arbitration pursuant to Section 9.6 results in a determination that the Third Party Claim is subject to indemnification pursuant to the terms hereof (the "Arbitration Determination"), then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party in Indemnified Party, which consent will not be withheld or delayed unreasonably). Any legal counsel engaged by the case Indemnifying Party to defend a Third Party Claim shall be approved by the Indemnified Party, such approval not to be unreasonably withheld or delayed. From the date of the Non-Dispute Notice or Arbitration Determination, as applicable, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period thereof; provided, however, that the indemnifying party desires Indemnified Party may, at any time prior to its receipt of the Non-Dispute Notice or the Arbitration Determination, as applicable, file any motion, answer, or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not irrevocably prejudicial to the Indemnifying Party (it being understood and agreed that, except as provided in Section 9.2(c) hereof, if an Indemnified Party takes any such action that is irrevocably prejudicial and conclusively causes a final adjudication that is materially adverse to the Indemnifying Party during the Notice Period or thereafter if the Indemnifying Party has given notice to the Indemnified Party of its desire to defend the Third Party Claim, or prior to the Arbitration Determination, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim irrevocably prejudiced by the Indemnified Party's action); and provided further, that if requested by the indemnifying party gives Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party (except that the Indemnifying Party shall not be responsible for any attorneys fees of the Indemnified Party unless the retention of such notice but fails attorneys is required by the Indemnifying Party), to prosecute vigorously cooperate with the Indemnifying Party and diligently or settle its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). 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 9.2(b), but all such settlements shall be subject to the Indemnified Party's approval, and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party fails to provide the Non-Dispute Notice to the Indemnified Party (without any reservation of rights) with respect to the Third Party Claim pursuant to this ARTICLE IX, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within diligently and promptly prosecute or settle the Third Party Claim either following the Arbitration Determination or after the Indemnifying Party gives the Non-Dispute PeriodNotice, then the indemnified party Indemnified Party will have the right (but not the obligation) to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings and defense, if commenced, will be promptly and vigorously prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified partyIndemnified party (with the consent of the Indemnifying Party, which consent will not be withheld or delayed unreasonably). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnifying Party or any of its Affiliates). Notwithstanding the foregoing provisions of this Section 9.2(c), if the Indemnifying Party has timely notified the Indemnified Party that the Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party, pursuant to the arbitration process provided in Section 9.6 below or otherwise, if applicable, by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 9.2(c) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such proceedings. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.2(c), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has Indemnified Party shall have a claim against any indemnifying party Indemnifying Party hereunder that does not involve a Third Party ClaimClaim being asserted against or sought to be collected from the Indemnified Party, the indemnified party shall deliver a Claim Notice Indemnified Party will notify the Indemnifying Party with reasonable promptness to of such claim by the indemnifying partyIndemnified Party, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim (the "Indemnity Notice"). If the indemnifying party notifies Indemnifying Party disputes such claim (which dispute shall be communicated to the indemnified party that it does not dispute the claim described Indemnified Party in such Claim Notice or fails to notify the indemnified party writing within the Dispute Period whether the indemnifying party disputes the claim15 days of receipt of an Indemnity Notice), the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party and the indemnifying party shall pay the amount of such Loss Indemnified Party agree to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to attempt to negotiate a resolution of such disputedispute for a period of thirty days, and if not resolved through negotiations within a reasonable period negotiations, either party may submit the matter to arbitration to determine whether the Indemnifying Party has such liability in accordance with the provisions of time, such dispute shall be resolved by litigation in a court of competent jurisdictionSection 9.6 below.
Appears in 1 contract
Method of Asserting Claims. (a) All claims for indemnification by any indemnified party hereunder will an Indemnified Person pursuant to this Article V shall be asserted and resolved as follows:
(a) In made in accordance with the event of any Third Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature provisions of the Third Party ClaimEscrow Agreement, together except for third party claims, which shall be made in accordance with the amount or, if not then reasonably ascertainable, provisions of this Article V and the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party ClaimEscrow Agreement.
(b) If a licensor, licensee or customer of the indemnifying Company asserts that an Indemnified Person is liable to such third party notifies for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Article V, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without consent from the indemnified party within the Dispute Period Indemnification Representatives, provided that the indemnifying party desires to defend the indemnified party with respect Indemnified Person provides prior written notice to the Third Party ClaimIndemnification Representatives, then (ii) such Indemnified Person may make a claim for indemnification pursuant to this Article V in accordance with the indemnifying party will have provisions of the Escrow Agreement, and (iii) such Indemnified Person shall be reimbursed, in accordance with the provisions of the Escrow Agreement, for any such Damages for which it is entitled to indemnification pursuant to this Article V (subject to the right of the Indemnification Representatives to defenddispute the Indemnified Person's entitlement to indemnification under the terms of this Article V).
(c) The Indemnified Person shall give prompt written notification to the Indemnification Representatives of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article V may be sought; provided, however, that no delay on the part of the Indemnified Person in notifying the Indemnification Representatives shall relieve the Company Stockholders of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Indemnification Representatives may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the indemnified partyIndemnified Person, at provided the sole cost and expense of Indemnification Representatives acknowledge in writing to the indemnifying partyIndemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such Third Party Claim by all appropriate proceedingsaction, suit or proceeding constitute Damages for which proceedings will the Indemnified Person shall be vigorously and diligently prosecuted by the indemnifying party entitled to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) indemnification pursuant to this Article V. If the indemnifying Indemnification Representatives do not so assume control of such defense, the Indemnified Person shall control such defense. The party fails to notify not controlling such defense may participate therein at its own expense; provided that if the indemnified party within Indemnification Representatives assume control of such defense and the Dispute Period Indemnified Person is advised by counsel in writing that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party parties and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Person have conflicting interests or different defenses available with respect to such claimaction, suit or proceeding, the indemnifying reasonable fees and expenses of counsel to the Indemnified Person shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the indemnified party will proceed defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Person shall not agree to negotiate a resolution any settlement of such disputeaction, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In suit or proceeding without the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability prior written consent of the indemnifying party and the indemnifying party Indemnification Representatives, which shall pay the amount not be unreasonably withheld. The Indemnification Representatives shall not agree to any settlement of such Loss to action, suit or proceeding without the indemnified party on demand. If prior written consent of the indemnifying party has timely disputed its liability with respect to such claimIndemnified Person, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if which shall not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionunreasonably withheld.
Appears in 1 contract
Sources: Merger Agreement (Flexiinternational Software Inc/Ct)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under SECTION 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under SECTION 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Purchaser (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 11.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 11.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under SECTION 11.01 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this SECTION 11.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this SECTION 11.02(a)(i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 11.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to SECTION 11.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this SECTION 11.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 11.02(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this SECTION 11.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 11.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with SECTION 11.02(c).
(eb) In the event any indemnified party has Indemnified Party should have a claim under SECTION 11.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with SECTION 11.02(c).
(c) Any dispute submitted to arbitration pursuant to this SECTION 11.02 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "BOARD OF ARBITRATION") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) 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 (30) 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 court of competent jurisdiction. Each party to any arbitration shall bear its own expense 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 Party 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 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified As used herein, an “Indemnified Party” shall refer to a Buyer Indemnified Party or Seller Indemnified Party, as the case may be, and the “Indemnifying Party” shall refer to the party hereunder will be asserted and resolved as follows:or parties hereto obligated to indemnify such Indemnified Party.
(ai) In the event of that any Third Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party ClaimIndemnified Parties is made a defendant in or party to any action or proceeding, together with judicial or administrative, instituted by any third party the amount or, if not then reasonably ascertainable, liability or the estimated amount, determined in good faith, costs or expenses of the Third Party Claim which are Adverse Consequences (any such third party action or proceeding being referred to as a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute PeriodClaim”), whether the indemnifying party disputes Indemnified Party shall give the Indemnifying Party prompt notice thereof. The failure to give such notice shall not affect any Indemnified Party’s ability to seek reimbursement unless such failure has materially and adversely affected the Indemnifying Party’s ability to successfully defend a Claim. The Indemnifying Party shall be entitled to contest and assume the defense of such Claim and to be represented by attorneys of its liability own choosing, which attorneys are reasonably acceptable to the indemnified party Indemnified Party. Notice of the intention so to contest and whether defend shall be given by the indemnifying party desiresIndemnifying Party to the Indemnified Party within thirty (30) days after the Indemnified Party’s notice of such Claim. The Indemnified Party shall be entitled at any time, at its sole own cost and expenseexpense (which expense shall not constitute an Adverse Consequence), to participate in such contest and defense and to be represented by attorneys of its own choosing, which attorneys shall be reasonably acceptable to the Indemnifying Party; provided, however, that the reasonable costs and expenses of the Indemnified Party prior to the Indemnified Party electing to defend the indemnified party against such Third Party Claim.
(b) claim will be an Adverse Consequence. If the indemnifying party notifies Indemnified Party elects to participate in such defense, the indemnified party within Indemnified Party will cooperate with the Dispute Period that Indemnifying Party in the indemnifying party desires conduct of such defense. If the Indemnifying Party elects not to defend a Claim, whether by not giving the indemnified party with respect to the Third Indemnified Party Claimtimely notice as provided by this §8(d)(i) or otherwise, then the indemnifying party Indemnified Party will have the right sole power to defenddirect and control such defense, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnified Party’s choosing. Neither the Indemnified Party nor the Indemnifying Party may concede, such Third Party settle or compromise any Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with without the consent of the indemnified party other party, which consent will not be unreasonably withheld; provided, however, that in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails Indemnifying Party requests the Indemnified Party to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails accept a proposed financial settlement to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted paid by the indemnified party in a reasonable manner and in good faith Indemnified Party or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party compromise with respect to the Third Party any Claim, and the Loss in Indemnified Party withholds its consent thereto, the amount specified in the Claim Notice will be conclusively deemed a liability obligation of the indemnifying party and the indemnifying party shall pay the amount of Indemnifying Party to such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Party under this §8 with respect to such claimClaim shall not thereafter exceed the aggregate amount that the Indemnifying Party would have paid hereunder in connection with such settlement or compromise (including reimbursable expenses to the date thereof); provided, further, however, and notwithstanding anything else to the contrary contained in this Agreement, the indemnifying party Indemnifying Party will not settle, compromise or offer to settle or compromise any Claim on a basis 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 Affiliate thereof or concede the invalidity or unenforceability of, or grant a license to the use of or under, any Intellectual Property without the consent of the Indemnified Party, which consent may not be unreasonably withheld. If the liability of the Indemnifying Party with respect to a Claim is subject to the Basket Amount and the indemnified party Basket Amount has not yet been fully satisfied, the Indemnified Party shall reimburse the Indemnifying Party, upon demand of the Indemnifying Party, for any amount actually incurred by the Indemnifying Party in defending such Claim up to the amount of the remaining Basket Amount.
(ii) In the event any Indemnified Party should have a claim against any Indemnifying Party that does not involve a Claim, the Indemnified Party shall deliver a notice of such claim to the Indemnifying Party, setting forth in reasonable detail the identity, nature and estimated amount of Adverse Consequences related to such claim or claims, with reasonable promptness and in any event prior to the expiration of the Indemnifying Party’s indemnification obligation hereunder. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party disputes the claim described in such notice, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within dispute for a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionat least thirty (30) days.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification under this Article 7 by any indemnified party hereunder Person entitled to indemnification (an “Indemnified Party”) under this Article 7 will be asserted and resolved as follows:
(a) In the event of any claim or demand, for which a Party hereto (an “Indemnifying Party”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from an Indemnified Party by a Person other than Shareholder, Purchaser or their Affiliates (a “Third Party Claim”), the indemnified party Indemnified Party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing give a copy notice of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim its claim (a “Claim Notice”)) to the Indemnifying Party within thirty (30) calendar days after the Indemnified Party receives written notice of such Third Party Claim; provided, however, that notice shall be given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 thirty (30) calendar days of after receipt of a the Claim Notice (the “Dispute Notice Period”), ) whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying partyIndemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 7.4(a), then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party (but only Indemnifying Party. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 7.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the consent of the indemnified party Indemnifying Party and its counsel in the case of contesting any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period Third Party Claim that the indemnifying party desires Indemnifying Party elects to defend contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). 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(a)(i), and except as specifically provided in this Section 7.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 7.4(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Notice Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified party.
(d) If Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the indemnifying party notifies Indemnified Party, the indemnified party that it does not dispute Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its liability counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the indemnified party with respect to Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Loss in Indemnifying Party or any of its Affiliates). Notwithstanding the amount specified in foregoing provisions of this Section 7.4(a)(ii), if the Claim Notice will be conclusively deemed a Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Party with respect to such claimThird Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the indemnifying party Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.4(a)(ii). Subject to the above terms of this Section 7.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.4(a)(ii), and the indemnified party Indemnifying Party will proceed in good faith bear its own costs and expenses with respect to negotiate such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionThird Party Claim to allow the Indemnifying Party to participate therein.
(eb) In the event any indemnified party has Indemnified Party should have a claim against any indemnifying party Indemnifying Party hereunder that does not involve a Third Party ClaimClaim being asserted against or sought to be collected from the Indemnified Party, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying partyIndemnifying Party. If the indemnifying party notifies the indemnified party that it (The term “Indemnity Notice” shall mean written notification of a claim for indemnity under Article 7 hereof (which claim does not dispute involve a Third Party Claim or Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 7.4, specifying the nature of and specific basis for such claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in and the amount specified in or the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the estimated amount of such Loss claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such Party’s rights hereunder except to the indemnified party on demand. If the indemnifying party extent that an Indemnifying Party demonstrates that it has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionbeen prejudiced thereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will be asserted and resolved as follows:
(a) In the event of any Third Indemnified Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing should have a copy of all papers served, if any, and specifying the nature of the Third claim under this Article X against any Indemnifying Party Claim, together with the amount or, if that does not then reasonably ascertainable, the estimated amount, determined in good faith, of the involve a Third Party Claim (a “Claim Notice”as hereinafter defined), the Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to the Indemnifying Party. The indemnifying party will notify failure by any Indemnified Party to give the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Indemnity Notice (the “Dispute Period”), whether the indemnifying party disputes its liability shall not impair such Party’s rights hereunder except to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third extent that an Indemnifying Party Claim.
(b) demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Indemnified Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability the claim described in such Indemnity Notice or fails to notify the indemnified party with respect to Indemnified Party within the Third Dispute Period whether the Indemnifying Party Claimdisputes the claim described in such Indemnity Notice, the Loss in Damages arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article X and the indemnifying party Indemnifying Party shall pay the amount of such Loss Damages to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. The party making a claim under this Article V is referred to as the “Indemnified Party” and the party against whom such claims are asserted under Section 11.2 is referred to as the “Indemnifying Party”. All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Section 11.2 shall be asserted and resolved as follows:
(a) In the event of that any Third claim or demand for which an Indemnifying Party Claimwould be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, the indemnified party said Indemnified Party shall deliver written notification thereof to the indemnifying party with reasonable promptnesspromptness notify in writing the Indemnifying Party of such claim or demand, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claimspecific basis for such claim or demand, together with and the amount or, if not then reasonably ascertainable, or the estimated amount, determined in good faith, amount thereof to the extent then feasible (which estimate shall not be conclusive of the Third Party Claim (a final amount of such claim and demand; any such notice, being the “Claim Notice”); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced or harmed. The indemnifying party will notify Indemnifying Party, upon request of the indemnified party as soon as practicableIndemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party) to represent the Indemnified Party, and shall pay the fees and disbursements of such counsel with regard thereto, provided, further, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose reasonable fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but in any case within 30 days the fees and expenses of receipt such counsel shall be at the expense of a Claim Notice such Indemnified Party unless (i) the “Dispute Period”), whether Indemnifying Party and the indemnifying party disputes its liability Indemnified Party shall have mutually agreed to the indemnified party retention of such counsel or (ii) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and whether the indemnifying party desiresIndemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not, at in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its sole cost (or the Indemnifying Party’s) rights prior to the selection of counsel by the Indemnifying Party). The Indemnified Party agrees to cooperate with the Indemnifying Party and expenseits counsel in contesting any claim or demand which the Indemnifying Party defends. No claim or demand may be settled by an Indemnifying Party or, where permitted pursuant to defend this Agreement, by an Indemnified Party without the indemnified party against consent of the Indemnified Party in the first case or the consent of the Indemnifying Party in the second case, which consent shall not be unreasonably withheld, unless such Third settlement shall be accompanied by a complete release of the Indemnified Party Claimin the first case or the Indemnifying Party in the second case.
(b) If In the indemnifying party notifies event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party Indemnified Party shall send a Claim Notice with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory such claim to the indemnified partyIndemnifying Party. If the Indemnifying Party does not dispute such claim, at the sole cost and expense amount of such claim shall be paid to the Indemnified Party within thirty (30) days of receipt of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages)Notice.
(c) If So long as any right to indemnification exists pursuant to this Article XI, the indemnifying party fails affected parties each agree to notify retain all books, records, accounts, instruments and documents reasonably related to the indemnified party within Claim Notice. In each instance, the Dispute Period that the indemnifying party desires to defend the Third Indemnified Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted kept informed by the indemnified party in a reasonable manner Indemnifying Party and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party legal counsel with respect to all significant matters relating to any legal proceedings. Any information or documents made available to any party hereunder, which information is designated as confidential by the Third Party Claimparty providing such information and which is not otherwise generally available to the public, or which information is not otherwise lawfully obtained from third parties or not already within the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability knowledge of the indemnifying party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and the indemnifying except as may be required by applicable law or requested by third party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect lenders to such claimparty, shall not be disclosed to any third Person (except for the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability representatives of the indemnifying party and being provided with the indemnifying information, in which event the party being provided with the information shall pay the amount of request its representatives not to disclose any such Loss information which it otherwise required hereunder to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionkept confidential).
Appears in 1 contract
Sources: Merger Agreement (ClickStream Corp)
Method of Asserting Claims. The party making a claim under this Section VIII is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Section VIII is referred to as the "Indemnifying Party". All claims for indemnification by any indemnified party hereunder will Indemnified Party under this Section VIII shall be asserted and resolved as follows:
(a) In the event that any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such claim or demand (the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any Third rights of the Indemnified Party Claimexcept to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party) to represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that the Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party if the Indemnified Party has delivered a Claim Notice, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party receives such notice from the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the indemnified party Indemnified Party shall deliver written notification thereof have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the indemnifying party retention of such counsel or (y) the named parties of 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. The Indemnifying Party shall not, in connection with reasonable promptnessany proceedings or related proceedings in the same jurisdiction, enclosing a copy be liable for the fees and expenses of all papers servedmore than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, if any, the Indemnified Party agrees to cooperate with the Indemnifying Party and specifying its counsel in contesting any claim or demand which the nature Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Third Indemnified Party Claim(which consent will not be unreasonably withheld) unless, together with the amount or, if not then reasonably ascertainableas part of such settlement, the estimated amountIndemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party; provided, determined in good faiththat if, notwithstanding the full and unconditional release of the Third Indemnified Party Claim (a “Claim Notice”). The indemnifying party will notify from all liability in respect of such claim or demand, the indemnified party as soon as practicableIndemnified Party refuses to consent to such settlement, but in any case within 30 days of receipt of a Claim Notice (then thereafter the “Dispute Period”), whether the indemnifying party disputes its Indemnifying Party's liability to the indemnified Indemnified Party in respect of such third party claim shall not exceed the settlement amount included in such settlement offer, and whether the indemnifying Indemnified Party shall either assume the defense of such third party desires, at its sole cost claim or pay the Indemnifying Party's attorneys' fees and expense, to defend other out-of-pocket costs incurred thereafter in continuing the indemnified defense of such thirty party against such Third Party Claimclaim.
(b) If In the indemnifying party notifies event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party Indemnified Party shall send a Claim Notice with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory such claim to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages)Indemnifying Party.
(c) If After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Section VIII, the indemnifying party fails affected parties each agree to notify retain all Books and Records related to such Claim Notice. In each instance, the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Indemnified Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted kept fully informed by the indemnified party in a reasonable manner Indemnifying Party and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the Third Party Claim, party providing such information or documents and which is not otherwise generally available to the Loss in public and not already within the amount specified in the Claim Notice will be conclusively deemed a liability best knowledge of the indemnifying party and to whom the indemnifying party shall pay information is provided (unless otherwise covered by the amount confidentiality provisions of such Loss to any other agreement among the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claimparties hereto, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution or any of such disputethem), and if except as may be required by applicable law, shall not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
disclosed to any third Person (e) In except for the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability representatives of the indemnifying party and being provided with the indemnifying information, in which event the party being provided with the information shall pay the amount of request its representatives not to disclose any such Loss information which it otherwise required hereunder to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionkept confidential).
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder will DISH Indemnified Person or EchoStar Indemnified Person (each, an “Indemnified Party”) shall be asserted and resolved as follows:
set forth in this Section 8.4. Any Indemnified Party seeking indemnity pursuant to Section 8.1 or Section 8.2 shall notify in writing the Party from whom indemnification is sought (athe “Indemnifying Party”) of such demand for indemnification. The Indemnifying Party shall have thirty (30) days from the personal delivery or mailing of such notice (the “Notice Period”) to notify the Indemnified Party whether or not it desires to defend the Indemnified Party against such claim or demand with respect to a claim or demand based on a Third Party Claim. In the event of any that the Indemnifying Party notifies the Indemnified Party within the Notice Period that, with respect to a Third Party Claim, it desires to defend the Indemnified Party against such Third Party Claim, the indemnified party Indemnifying Party shall deliver written notification thereof have the right to defend the Indemnified Party at the Indemnifying Party’s sole cost and expense and with counsel (plus local counsel if appropriate) reasonably satisfactory to the indemnifying party with reasonable promptnessIndemnified Party. No Indemnifying Party shall, enclosing a copy of all papers served, if any, and specifying without the nature prior written consent of the Indemnified Party, compromise or consent to entry of any judgment or enter into any settlement agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 8.1 or Section 8.2 (whether or not the Indemnified Party is an actual or potential party thereto), unless such compromise, consent or settlement involves only the payment of money damages for which the Indemnifying Party will indemnify the Indemnified Party hereunder. If the right to assume and control the defense is exercised, the Indemnified Party shall have the right to participate in, but not control, such defense at its own expense and the Indemnifying Party’s indemnity obligations shall be deemed not to include attorneys’ fees and litigation expenses incurred in such participation by the Indemnified Party after the assumption of the defense by the Indemnifying Party in accordance with the terms of this Agreement; provided, however, that the Indemnified Parties collectively shall be entitled to employ one firm or separate counsel (plus local counsel if appropriate) to represent the Indemnified Parties if, in the opinion of counsel to each Indemnified Party seeking to employ such separate counsel, a conflict of interest between such Indemnified Party or Parties and the Indemnifying Party exists in respect of such claim and in each such event, the fees, costs and expenses of one such firm or separate counsel (plus one local counsel per jurisdiction if appropriate) shall be paid in full by the Indemnifying Party. If the Indemnifying Party has not elected to assume the defense of a Third Party Claim, together with Claim within the amount or, if not then reasonably ascertainableNotice Period, the estimated amountIndemnified Party may defend and settle the claim for the account and cost of the Indemnifying Party; provided, determined in good faith, of that the Indemnified Party will not settle the Third Party Claim (a “Claim Notice”). The indemnifying party will notify without the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the prior written consent of the indemnified party in Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnified Party shall cooperate with the case Indemnifying Party and, subject to obtaining proper assurances of any settlement that provides for any relief other than confidentiality and privilege, shall make available to the payment of monetary damages).
(c) If Indemnifying Party all pertinent information under the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have the right to defend, at the sole cost and expense control of the indemnifying party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under SECTION 8.2 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under SECTION 8.2 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Purchaser (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 8.2 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 8.2(A), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 8.1 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to SECTION 8.2(A), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 8.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 8.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following its final determination. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with SECTION 11.11.
(eb) In the event any indemnified party has Indemnified Party should have a claim under SECTION 8.1 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 8.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following its final determination. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with SECTION 11.11.
(c) The amount which an Indemnifying Party is required to pay to, for, or on behalf of any other party pursuant to this Article VIII shall be reduced (including, without limitation, retroactively) by any insurance proceeds actually recovered (after making a court good faith effort for such recovery) by or on behalf of competent jurisdictionsuch Indemnified Party and other amounts paid by any other person in reduction of the related indemnifiable loss (the "Indemnifiable Loss"). Amounts required to be paid, as so reduced, are hereafter sometimes called an "Indemnity Payment." If an Indemnified Party shall have received or shall have paid on its behalf an Indemnity Payment in respect of an Indemnifiable Loss and shall subsequently receive directly or indirectly insurance proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall promptly pay to the Indemnifying Party a sum equal to the amount of such insurance proceeds or other amounts provided the same does not exceed an amount equal to the payment actually made by the Indemnifying Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Qad Inc)
Method of Asserting Claims. All Subject to Section 8.1, all claims for indemnification under this Article VIII by any indemnified party claiming indemnification hereunder (an "Indemnified Party") will be asserted and resolved as follows:.
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this Article VIII is asserted against or sought to be collected from such Indemnified Party by a Person other than either the parties hereto or any Affiliate of the parties hereto (a "Third Party Claim"), the indemnified party Indemnified Party shall deliver a written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and such Third Party Claim specifying the nature of the and basis for such Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the such Third Party Claim (a “"Claim Notice”") with reasonable promptness to the party against whom a claim for indemnification is being asserted hereunder (an "Indemnifying Party"). If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party will be obligated to indemnify the Indemnified Party with respect to such Third Party Claim except to the extent that the Indemnifying Party's ability to defend is prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party as soon as practicable, but in any case Indemnified Party within 30 fifteen (15) calendar days of following receipt of a the Claim Notice (the “"Dispute Period”), ") whether the indemnifying party Indemnifying Party accepts or disputes its liability to the indemnified party Indemnified Party under this Article VI and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 8.4, then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, or, at the discretion of the Indemnifying Party, to settle such Third Party Claim (but only with the consent of the Indemnified Party, which shall not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Article VIII). Subject to the foregoing, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the cost and expense of the Indemnifying Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 8.4(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide full cooperation to the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 8.4 and, except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article VIII with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim, or if the Indemnifying Party gives such notice but any time thereafter fails diligently to prosecute or defend or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will 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 will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion Indemnified Party in good faith or will be settled at the discretion of the indemnifying party Indemnified Party (but only with the consent of the indemnified party Indemnifying Party, which shall not be unreasonably withheld or delayed, in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) If the indemnifying party fails to notify the indemnified party within the Dispute Period that the indemnifying party desires to defend the Third . The Indemnified Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the right to defendIndemnified Party, the Indemnifying Party will, at the sole cost and expense of the indemnifying partyIndemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim by which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 8.4, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 8.4 or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all appropriate proceedings, which proceedings will be prosecuted reasonable costs and expenses incurred by the indemnified party Indemnifying Party in a reasonable manner connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 8.4, and in good faith or the Indemnifying Party will be settled at the discretion of the indemnified partybear its own costs and expenses with respect to such participation.
(diii) If Subject to Section 8.2(b), if the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute accepts its indemnification liability to the indemnified party Indemnified Party with respect to the Third Party Claim under this Article VIII or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified Losses identified in the Claim Notice Notice, as finally determined, will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article VIII and the indemnifying party Indemnifying Party shall pay the amount of such Loss Losses to the indemnified party Indemnified Party on demanddemand plus interest at the Agreed Rate from the date of the receipt of the applicable Claim Notice to the date of such payment. If the indemnifying party has Indemnifying Party timely disputed disputes its liability with respect to such claimThird Party Claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the thirty (30) calendar days following receipt by an Indemnified Party of a reasonable period of timeDispute Notice (the "Resolution Period"), such dispute shall be resolved by litigation in a court of competent jurisdiction.
(eb) In the event any indemnified party has Indemnified Party should have a claim under this Article VIII against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim Notice written notification of a claim for indemnity under this Article VIII specifying the nature and basis for such claim, together with the amount, or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such claim (an "Indemnity Notice") with reasonable promptness to the indemnifying Indemnifying Party. The failure or delay by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that such failure or delay prejudices an Indemnifying Party. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss Losses indemnified in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under this Article VIII and the indemnifying party Indemnifying Party shall pay the amount of such Loss Losses to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such disputedispute and, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for -------------------------- indemnification by any indemnified party hereunder Indemnified Party under Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Cyprus, Cyprus Gold, - 30 - Magadan, Omolon, Amax Gold or any Affiliate of Cyprus or Amax Gold (a "Third Party Claim"), the Indemnified Party shall deliver ----------------- a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying party, Indemnifying Party such Third Party Claim by all appropriate proceedings, which proceedings . Settlement of such Third Party Claim will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of Section 11.01(c)). If requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails Claim pursuant to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute PeriodSection 11.02(a), then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings. The Indemnifying Party may participate in, which proceedings will be prosecuted but not control, any defense or settlement controlled by the indemnified party in a reasonable manner Indemnified Party pursuant to this clause (ii), and in good faith or the Indemnifying Party will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute bear its liability to the indemnified party own costs and expenses with respect to such participation. If the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party
(b) In the event any Indemnified Party should have a claim under Section 11.01 against any Indemnifying Party that does not involve a Third Party Claim, the Loss in the amount specified in the Claim Indemnified Party shall deliver an Indemnity Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss with reasonable promptness to the indemnified party on demandIndemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party has timely disputed within the Dispute Period notified the Indemnified Party that the Indemnifying Party disputes its liability with respect to such claim, the indemnifying party chief executive officers of Amax Gold and Cyprus (or other executive officers appointed by them) shall meet for the indemnified party will proceed purpose of proceeding in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period 60 days following receipt by Indemnified Party of timesuch notice, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (c) of competent jurisdictionthis Section 11.02.
(ec) Any dispute submitted to arbitration pursuant to this Article XI shall be determined in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, by a panel of three (3) arbitrators selected in accordance with said Commercial Arbitration Rules (the "Board of Arbitration"). In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claimof conflict between the provisions of this Agreement and the provisions of said Commercial Arbitration Rules, the indemnified party provisions of this Agreement shall deliver prevail. Any questions of whether a Claim Notice with reasonable promptness to dispute should be arbitrated under this Article XI shall be decided by the indemnifying partyBoard of Arbitration. If the indemnifying party notifies the indemnified party that it does not dispute the claim described The Board of Arbitration shall meet in Denver, Colorado or such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed other place as a liability majority of the indemnifying party 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 indemnifying party shall pay members of the amount Board of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Arbitration) with respect to such claimthe amount, if any, which the indemnifying party and Indemnifying Party is required to pay to the indemnified party will proceed Indemnified Party in good faith to negotiate respect of a resolution claim filed by the Indemnified Party. To the extent practical, decisions of such dispute, and if not resolved through negotiations within a reasonable period the Board of time, such dispute Arbitration shall be resolved rendered no more than thirty (30) days following commencement of proceedings with respect thereto. Each party may pursue any method of discovery permitted by litigation in a court the Federal Rules of competent jurisdiction.Civil Procedure, notwithstanding Rule 81(a)(3)
Appears in 1 contract
Sources: Merger Agreement (Amax Gold Inc)
Method of Asserting Claims. All claims for indemnification by -------------------------- any indemnified party hereunder will Indemnified Party under Section 11.01 shall be asserted and resolved only as ------------- follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against ------------- or sought to be collected from such Indemnified Party by a Person other than a Seller or any Affiliate of a Seller or of Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section ------- 11.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, ----- to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.02(a), then the indemnifying party Indemnifying Party will have the right to ---------------- defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that
(a) (i), and the Indemnified Party will bear its own costs and expenses ----------- with respect to such separate counsel except as provided in the preceding sentence and except that provides the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any relief other than Third Party Claim the payment defense of monetary damages)which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party ------------- Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 11.02(a), or if the indemnifying party ---------------- Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 11.02(a)(ii), if -------------------- the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required ------------ to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 11.02(a)(ii) or of the Indemnifying Party's participation -------------------- therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.02(a)(ii), and the Indemnifying Party will bear its own -------------------- costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to notify the ------------- Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section ------- 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party ----- Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdiction.accordance with Section 11.02(c). ----------------
(eb) In the event any indemnified party Indemnified Party has a claim under Section ------- 11.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, ----- the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 ------------- and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following the final determination thereof. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdictionthe Bankruptcy Court.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Majestic Star Casino LLC)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller or any Affiliate of Seller or of Purchaser (a "Third Party Claim"), the indemnified party Indemnified Party shall deliver written notification thereof a Claim Notice to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Indemnifying Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but is practicable and in any case event within 30 days of receipt the time that the Indemnified Party learns of a such Third Party Claim. If the Indemnified Party fails so to provide the Claim Notice (Notice, the “Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within the Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 11.01 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 11.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion Indemnifying Party in good faith or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will be deemed to have waived its right to dispute its liability to the Indemnified Party under Section 11.01 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying - 42 - 49 Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel, except that the Indemnifying Party will pay the costs and expenses of such separate counsel if in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to Section 11.02(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and Indemnified Party in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified - 43 - 50 Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the arising from such Third Party Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following its final determination. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (c) of competent jurisdictionthis Section 11.02.
(eb) In the event any indemnified party Indemnified Party should determine in good faith that it has a claim under Section 11.01 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in arising from - 44 - 51 the amount claim specified in the Claim such Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 11.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demanddemand following its final determination. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with paragraph (c) of this Section 11.02.
(c) Any dispute submitted to arbitration pursuant to this Section 11.02 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party and the Indemnifying Party. The Board of Arbitration 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 is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, 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 (30) 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 (30) calendar 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 court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the member of the Board of Arbitration appointed by such party, provided, however, that the expenses and fees of the third member of the Board of Arbitration and any other expenses of the Board of Arbitration not capable of being attributed to any one member shall be borne - 45 - 52 in equal parts by the Indemnifying Party and the Indemnified Party.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 8.1 will be asserted and resolved as follows:
(a) In order for an Indemnified Party to be entitled to any indemnification provided for under Section 8.1 in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the event Indemnified Party (a "Third Party Claim"), the Indemnified Party must deliver a Claim Notice to the Indemnifying Party within 30 Business Days after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that failure to give such Claim Notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party, provided that all Indemnifying Parties with respect to such Third Party Claim jointly acknowledge to the Indemnified Party its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may be modified through written agreement of the parties or arbitration hereunder) and provide assurances reasonably satisfactory to the Indemnified Party that the Indemnifying Parties will be financially able to satisfy such claim in full if it is decided adversely. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (except as hereinafter provided), but shall continue to pay for any expenses of investigation or any Loss suffered. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as hereinafter provided), separate from the counsel employed by the Indemnifying Party. Notwithstanding the foregoing, if (i) the Indemnifying Party shall not assume the defense of a Third Party Claim with counsel satisfactory to the Indemnified Party within five Business Days of any Claim Notice, or (ii) legal counsel for the Indemnified Party notifies the Indemnifying Party that there are or may be legal defenses available to the Indemnified Party or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party, which, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such Indemnified Party, or (iii) if the Indemnifying Party shall assume the defense of a Third Party Claim and fail to diligently and vigorously prosecute such defense in a timely manner, then in each such case the Indemnified Party, by notice to the Indemnifying Party, may employ its own counsel and control the defense of the Third Party Claim and the Indemnifying Party shall be liable for the reasonable fees, charges and disbursements of counsel employed by the Indemnified Party; and the Indemnified Party shall be promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the Indemnifying Party or the Indemnified Party control the defense of any Third Party Claim, the indemnified party parties hereto shall deliver written notification thereof cooperate in the defense thereof. Such cooperation shall include the retention and provision to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature counsel of the controlling party of records and information which are reasonably relevant to such Third Party Claim, together with and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall have the amount orright to settle, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the compromise or discharge a Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in other than any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by in which criminal conduct is alleged) without the Indemnified Party's consent if such settlement, compromise or discharge (i) constitutes a complete and unconditional discharge and release of all appropriate proceedingsIndemnified Parties, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that ii) provides for any no relief other than the payment of monetary damages)damages and such monetary damages are paid in full by the Indemnifying Party, and in all other cases may not so settle without the prior written consent of the Indemnified Party.
(c) If In the indemnifying party fails to notify the indemnified party within the Dispute Period event any Indemnified Party should have a claim under Section 8.1 against any Indemnifying Party that the indemnifying party desires to defend the does not involve a Third Party Claim, or if the indemnifying party gives such notice but fails Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to prosecute vigorously and diligently or settle the Third Indemnifying Party. The failure by any Indemnified Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then Indemnity Notice shall not impair such party's rights hereunder except to the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying party, the Third extent that an Indemnifying Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) demonstrates that it has been actually prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability the claim described in such Indemnity Notice or fails to notify the indemnified party with respect Indemnified Party within the Dispute Period as to whether the Third Indemnifying Party Claimdisputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability Liability of the indemnifying party Indemnifying Party under Section 8.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability Liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration as provided in a court of competent jurisdictionArticle 10.
(d) The rights accorded to Indemnified Parties hereunder shall be in addition to any rights that any Indemnified Party may have at law or in equity, under federal or state securities Laws or by separate agreement (including, without limitation, under the Operative Agreements).
(e) In Any payment under this Article 8 shall be treated for tax purposes as an adjustment of the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness Purchase Price to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in extent such Claim Notice or fails characterization is proper and permissible under relevant Tax authorities, including court decisions, statutes, regulations and administrative promulgations or, alternatively, by Purchaser as an offset to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claima Tax benefit item, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of if such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to characterization is permissible under such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionTax authorities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Homecom Communications Inc)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 9.1 will be asserted and resolved as follows:
(a) In order for an Indemnified Party to be entitled to any indemnification provided for under Section 9.1 in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the event Indemnified Party (a "Third Party Claim"), the Indemnified Party must deliver a Claim Notice to the Indemnifying Party within 30 Business Days after receipt by such Indemnified Party of written notice of the Third Party Claim; PROVIDED, HOWEVER, that failure to give such Claim Notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, but shall continue to pay for any expenses of investigation or any Loss suffered. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in such defense and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If (i) the Indemnifying Party shall not assume the defense of a Third Party Claim with counsel reasonably satisfactory to the Indemnified Party within five Business Days of any Claim Notice, or (ii) legal counsel for the Indemnified Party notifies the Indemnifying Party that there are or may be legal defenses available to the Indemnified Party or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party, which, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such Indemnified Party, or (iii) if the Indemnifying Party shall assume the defense of a Third Party Claim and fail to diligently prosecute such defense, then in each such case the Indemnified Party, by notice to the Indemnifying Party, may employ its own counsel and control the defense of the Third Party Claim and the Indemnifying Party shall be liable for the reasonable fees, charges and disbursements of counsel employed by the Indemnified Party; and the Indemnified Party shall be promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third Party Claim, the indemnified party parties hereto shall deliver written notification thereof cooperate in the defense thereof. Such cooperation shall include the retention and provision to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature counsel of the controlling party of records and information which are reasonably relevant to such Third Party Claim, together with and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall have the amount orright to settle, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the compromise or discharge a Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in other than any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party Claim.
(b) If the indemnifying party notifies the indemnified party within the Dispute Period that the indemnifying party desires to defend the indemnified party with respect to the Third Party Claim, then the indemnifying party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the sole cost and expense of the indemnifying party, such Third Party Claim by all appropriate proceedingsin which criminal conduct is alleged) without the Indemnified Party's consent if such settlement, which proceedings will be vigorously compromise or discharge (i) constitutes a complete and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion unconditional discharge and release of the indemnifying party Indemnified Party, and (but only with the consent of the indemnified party in the case of any settlement that ii) provides for any no relief other than the payment of monetary damages)damages and such monetary damages are paid in full by the Indemnifying Party.
(c) If In the indemnifying party fails to notify the indemnified party within the Dispute Period event any Indemnified Party shall have a claim under Section 9.1 against any Indemnifying Party that the indemnifying party desires to defend the does not involve a Third Party Claim, or if the indemnifying party gives such notice but fails Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to prosecute vigorously and diligently or settle the Third Indemnifying Party. The failure by any Indemnified Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then Indemnity Notice shall not impair such party's rights hereunder except to the indemnified party will have the right to defend, at the sole cost and expense of the indemnifying party, the Third extent that an Indemnifying Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) demonstrates that it has been materially prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability the claim described in such Indemnity Notice or fails to notify the indemnified party with respect to Indemnified Party within the Third Dispute Period whether the Indemnifying Party Claimdisputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.1 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(ed) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness The rights accorded to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute Indemnified Parties hereunder shall be resolved in addition to any rights that any Indemnified Party may have at law or in equity, under federal and state securities laws, by litigation in a court of competent jurisdictionseparate agreement (including, without limitation, under the Operative Agreements) or otherwise.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under Section 8.01 will be asserted and resolved as follows:
(a) In the event any claim or demand in respect of any which an Indemnified Party might seek indemnity under Section 8.01 is asserted against or sought to be collected from such Indemnified Party by a Person other than a Purchaser Indemnified Party or Seller Indemnified Party (a “Third Party Claim”), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the respect to such Third Party Claim, together with but only to the amount or, if not then reasonably ascertainable, extent that the estimated amount, determined in good faith, Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Third Party Claim (a “Claim Notice”)Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under Section 8.02 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this Section 8.02(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably, vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damagesdamages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time subsequent to the delivery of a Claim Notice to the Indemnified Party and prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 8.02(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest; and provided, further, that the Indemnified Party may choose separate counsel at the sole cost and expense of the Indemnified Party in the event that a conflict of interest arises between the Indemnified Party and the Indemnifying Party. 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 8.02(a)(i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 8.01 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify assume the indemnified party defense of the Third Party Claim within the Dispute Period that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute reasonably, vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 8.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 8.02(a)(ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 8.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party ClaimClaim under Section 8.01, or if the Indemnifying Party fails to deliver a notice to the Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.01 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 10.12 below.
(eb) In the event any indemnified party Indemnified Party has a claim under Section 8.02 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Notice Indemnity Notice, or if the Indemnifying Party fails to notify deliver a notice to the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party disputes the claimPeriod, then the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under Section 8.02 and the indemnifying party Indemnifying Party (as applicable) shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court of competent jurisdictionaccordance with Section 10.12 below.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under SECTION 10.02 will be asserted and resolved as follows:
(a) No claims will be made hereunder unless the total amount of such claims exceeds $100,000 at which time claims in excess of such amount will be subject to indemnification.
(b) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under SECTION 10.02 is asserted against or sought to be collected from such Indemnified Party by a Person other than Sellers, the Company, any Subsidiary, Purchaser or any Affiliate of any Seller or Purchaser (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the indemnified party shall deliver written notification thereof Indemnifying Party will not be obligated to indemnify the indemnifying party Indemnified Party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the respect to such Third Party Claim (a “Claim Notice”)to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified party Indemnified Party as soon as practicable, but in any case practicable within 30 days of receipt of a Claim Notice (the “Dispute Period”), Period whether the indemnifying party Indemnifying Party disputes its liability to the indemnified party Indemnified Party under SECTION 10.02 and whether the indemnifying party Indemnifying Party desires, at its sole cost and expense, to defend the indemnified party Indemnified Party against such Third Party Claim.
(bi) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this SECTION 10.03(a), then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified partyIndemnified Party, at the sole cost and expense of the indemnifying partyIndemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. 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 clause (i), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under SECTION 10.02 with respect to such Third Party Claim.
(cii) If the indemnifying party Indemnifying Party fails to notify the indemnified party Indemnified Party within the Dispute Period that the indemnifying party Indemnifying Party desires to defend the Third Party ClaimClaim pursuant to SECTION 10.03(a), or if the indemnifying party Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the indemnified party Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(diii) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute its liability to the indemnified party Indemnified Party with respect to the Third Party Claim under SECTION 10.02 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 10.02 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. In the event any payments under this Agreement are then due by the Indemnified Party to the Indemnifying Party (whether as a direct obligation or a joint and several obligation together with other Persons), then the Indemnified Party may, at its election, set off amounts payable under this ARTICLE X against such amounts as they become due. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in a court accordance with paragraph (c) of competent jurisdictionthis SECTION 10.03.
(ec) In the event any indemnified party has Indemnified Party should have a claim under SECTION 10.02 against any indemnifying party Indemnifying Party that does not involve a Third Party Claim, the indemnified party Indemnified Party shall deliver a Claim an Indemnity Notice with reasonable promptness to the indemnifying Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party that it does not dispute the claim described in such Claim Indemnity Notice or fails to notify the indemnified party Indemnified Party within the Dispute Period whether the indemnifying party Indemnifying Party disputes the claimclaim described in such Indemnity Notice, the Loss in the amount specified in the Claim Indemnity Notice will be conclusively deemed a liability of the indemnifying party Indemnifying Party under SECTION 10.02 and the indemnifying party Indemnifying Party shall pay the amount of such Loss to the indemnified party Indemnified Party on demand. In the event any payments under this Agreement, including any installments payable under clauses (b), (c) OR (d) OF SECTION 1.02, are then or thereafter due by the Indemnified Party to the Indemnifying Party (whether as a direct obligation or a joint and several obligation together with other Persons), then the Indemnified Party may, at its election, set off amounts payable under this ARTICLE X against such amounts as they become due. If the indemnifying party Indemnifying Party has timely disputed its liability with respect to such claim, the indemnifying party Indemnifying Party and the indemnified party Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timethe Resolution Period, such dispute shall be resolved by litigation arbitration in accordance with paragraph (c) of this SECTION 10.03.
(d) Any dispute submitted to arbitration pursuant to this SECTION 10.03 shall be finally and conclusively determined by the decision of a single arbitrator through Jams Endispute (hereinafter sometimes called the "ARBITRATOR") selected as hereinafter provided. The arbitrator shall be selected by Jams Endispute upon application made to it for such purpose by the Indemnified Party. The arbitrability of any dispute, claim or controversy shall likewise be determined in such arbitration. Such arbitration proceeding shall be conducted in as expedited a manner as is then permitted by the commercial arbitration rules (formal or informal) of Jams Endispute. The Arbitrator shall conduct its hearings in Santa Barbara, California, and shall reach and render a decision in writing with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Arbitrator shall adopt and follow such rules and procedures as it deems necessary or appropriate. To the extent practical, decisions of the Arbitrator shall be rendered no more than thirty (30) days following commencement of proceedings with respect thereto. The Arbitrator shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Arbitrator (either prior to or after the expiration of such thirty (30) calendar 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 court of competent jurisdiction. Until any award of costs or expenses, including reasonable attorneys' fees, by the Arbitrator, each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and one-half of the expenses and fees of the Arbitrator (which shall be a joint and several obligation of multiple Indemnifying or Indemnified Parties, as the case may be). The parties and the Arbitrator shall have all of the rights and duties relating to discovery provided by Section 1283.05 of the California Code of Civil Procedure, which is hereby made a part of this Agreement, except that the Arbitrator shall have the right to disapprove or to limit any discovery which such Arbitrator deems to be for purposes of delay or otherwise unnecessarily burdensome or oppressive.
(e) The maximum amount of claims made hereunder shall not exceed the lesser of: (i) the Purchaser's total investment in the Company (including loans or advances), or (ii) $5,000,000, except in the case of fraud by the Sellers, in which case there is no maximum. The maximum liability of any Seller, other than Love, shall be the portion of the Purchase Price received by such Seller.
(f) No claim may be made more than two (2) years from the date of the Closing.
Appears in 1 contract
Sources: Investment Agreement (PDT Inc /De/)
Method of Asserting Claims. All claims for indemnification by any indemnified party hereunder Indemnified Party under SECTION 10.2 OR 10.3 hereof will be asserted and resolved as follows:
(a) In the event any claim or demand for which an Indemnifying Party would be liable for Damages to an Indemnified Party under SECTION 10.2 OR 10.3 hereof is asserted against or sought to be collected from such Indemnified Party by a Person other than Chaswil, United, Citizens, Designated Subsidiary, or any Affiliate of any Third Party ClaimChaswil or Citizens ("THIRD PARTY CLAIM"), the indemnified party shall Indemnified Party will deliver written notification thereof a Claim Notice with reasonable promptness to the indemnifying party Indemnifying Party; PROVIDED, HOWEVER, that except as set forth in SECTION 10.4(D) hereof, no Claim Notice will be required with reasonable promptnessrespect to any action, enclosing a copy of all papers servedsuit, if anyinvestigation, and specifying or proceeding that is in existence on the nature of Closing Date. If the Indemnified Party fails to provide the Indemnifying Party with the Claim Notice required by the preceding sentence at least 14 calendar days before the date on which the Indemnifying Party's ability to defend against the Third Party Claim, together with Claim is irrevocably prejudiced by the amount or, if not then reasonably ascertainableIndemnified Party's failure to provide such Claim Notice, the estimated amount, determined in good faith, Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such portion of the Third Party Claim (a “Claim Notice”)as to which the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party. The indemnifying party Indemnifying Party will notify the indemnified Indemnified party as soon as practicable, but in any case within 30 days of with reasonable promptness after the Indemnifying Party's receipt of a Claim Notice Notice, but in all events within seven (the “Dispute Period”7) calendar days after receipt thereof ("NOTICE PERIOD"), as to whether the indemnifying party Indemnifying Party disputes its the liability of the Indemnifying Party to the indemnified party Indemnified Party hereunder with respect to such Third Party Claim and whether the indemnifying party Indemnifying Party desires, at its the sole cost and expenseexpense of the Indemnifying Party, to defend the indemnified party Indemnified Party against such Third Party Claim.
(b) If the indemnifying party Indemnifying Party notifies the indemnified party Indemnified Party within the Dispute Notice Period or at any time thereafter that the indemnifying party Indemnifying Party (without any reservation of rights) does not dispute its Liability to the Indemnified Party and that the Indemnifying Party desires to defend the indemnified party Indemnified Party with respect to the Third Party ClaimClaim pursuant to this ARTICLE 10, then the indemnifying party Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the indemnified party, at the its sole cost and expense of the indemnifying partyexpense, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the indemnifying party Indemnifying Party (but only with the consent of the indemnified party Indemnified Party, which consent will not be unreasonably withheld or delayed). From the date of such notice, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof) PROVIDED, HOWEVER, that the Indemnified Party may, at any time prior to its receipt of such notice from the Indemnifying Party, file any motion, answer, or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not irrevocably prejudicial to the Indemnifying Party (it being understood and agreed that, except as provided in SECTION 10.4(C) hereof, if an Indemnified Party takes any such action that is irrevocably prejudicial and conclusively causes a final adjudication that is materially adverse to the case Indemnifying Party, the Indemnifying Party will be relieved of any settlement its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action); and provided further, that provides if requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party (except that the Indemnifying Party shall not be responsible for any relief attorneys fees of the Indemnified Party unless the retention of such attorneys is required by 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, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the payment Indemnified Party or any of monetary damagesits Affiliates). 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 10.4(B), and except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation.
(c) If the indemnifying party Indemnifying Party fails to notify the indemnified party within the Dispute Period Indemnified Party that the indemnifying party Indemnifying Party (without any reservation of rights) does not dispute its Liability to the Indemnified Party and that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party ClaimClaim pursuant to this ARTICLE 10, or if the indemnifying party Indemnifying Party gives such notice but fails diligently and promptly to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party Indemnified Party will have the right to defend, at the sole cost and expense of the indemnifying partyIndemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings Proceedings will be promptly and vigorously prosecuted by the indemnified party in Indemnified Party to a reasonable manner and in good faith final conclusion or will be settled at the discretion of the indemnified partyIndemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld or delayed). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified party and its counsel in contesting any Third Party Claim that the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnifying Party or any of its Affiliates). Notwithstanding the foregoing provisions of this SECTION 10.4(C), if the Indemnifying Party has timely notified the Indemnified Party that the Indemnifying Party disputes its Liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 10.4(C) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such litigating. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this SECTION 10.4(C), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(d) If In the indemnifying party notifies the indemnified party event any Indemnified Party has a claim against any Indemnifying Party hereunder that it does not dispute its liability to the indemnified party with respect to the involve a Third Party ClaimClaim being asserted against or sought to be collected from the Indemnified Party, the Loss in Indemnified Party will notify the Indemnifying Party with reasonable promptness of such claim by the Indemnified Party, specifying the nature of and specific basis for such claim and the amount specified in or the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the estimated amount of such Loss to claim (the indemnified party on demand"INDEMNITY NOTICE"). If the indemnifying party has timely disputed its liability with respect to Indemnifying Party disputes such claim, the indemnifying party Indemnifying Party and the indemnified party will Indemnified Party agree to proceed in good faith to attempt to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of timenegotiations, such dispute shall be resolved by litigation in a court of competent jurisdictioneither party may pursue whatever remedies it may have under applicable law.
(e) In the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability with respect to such claim, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
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Sources: Acquisition Agreement (Citizens Financial Corp /Ky/)
Method of Asserting Claims. (a) All claims for indemnification by any indemnified party hereunder will an Indemnified Person pursuant to this Article VI shall be asserted and resolved as follows:
(a) In made in accordance with the event of any Third Party Claim, the indemnified party shall deliver written notification thereof to the indemnifying party with reasonable promptness, enclosing a copy of all papers served, if any, and specifying the nature provisions of the Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of the Third Party Claim (a “Claim Notice”). The indemnifying party will notify the indemnified party as soon as practicable, but in any case within 30 days of receipt of a Claim Notice (the “Dispute Period”), whether the indemnifying party disputes its liability to the indemnified party and whether the indemnifying party desires, at its sole cost and expense, to defend the indemnified party against such Third Party ClaimEscrow Agreement.
(b) If a third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Article VI, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then: (i) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the indemnifying party notifies Indemnification Representatives; (ii) such Indemnified Person may make a claim for indemnification pursuant to this Article VI in accordance with the indemnified party within provisions of the Dispute Period that Escrow Agreement and (iii) such Indemnified Person shall be reimbursed, in accordance with the indemnifying party desires provisions of the Escrow Agreement, for any such Damages for which it is entitled to defend the indemnified party with respect indemnification pursuant to this Article VI (subject to the Third Party Claimright of the Indemnification Representatives to dispute the Indemnified Person's entitlement to indemnification under the terms of this Article VI).
(c) The Indemnified Person shall give prompt written notification to the Indemnification Representatives of the commencement of any action, then suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought; provided, however, that no delay on the indemnifying party will have part of the right Indemnified Person in notifying the Indemnification Representatives shall relieve the Stockholders of any liability or obligation hereunder except to defendthe extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Indemnification Representatives may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the indemnified partyIndemnified Person, at provided the sole cost and expense of Indemnification Representatives acknowledge in writing to the indemnifying partyIndemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such Third Party Claim by all appropriate proceedingsaction, suit or proceeding constitute Damages for which proceedings will the Indemnified Person shall be vigorously and diligently prosecuted by the indemnifying party entitled to a final conclusion or will be settled at the discretion of the indemnifying party (but only with the consent of the indemnified party in the case of any settlement that provides for any relief other than the payment of monetary damages).
(c) indemnification pursuant to this Article VI. If the indemnifying Indemnification Representatives do not so assume control of such defense, the Indemnified Person shall control such defense. The party fails to notify not controlling such defense may participate therein at its own expense; provided that if the indemnified party within Indemnification Representatives assume control of such defense and the Dispute Period Indemnified Person reasonably concludes that the indemnifying party desires to defend the Third Party Claim, or if the indemnifying party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the indemnifying party fails to give any notice whatsoever within the Dispute Period, then the indemnified party will 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 will be prosecuted by the indemnified party in a reasonable manner and in good faith or will be settled at the discretion of the indemnified party.
(d) If the indemnifying party notifies the indemnified party that it does not dispute its liability to the indemnified party with respect to the Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the indemnifying party parties and the indemnifying party shall pay the amount of such Loss to the indemnified party on demand. If the indemnifying party has timely disputed its liability Indemnified Person have conflicting interests or different defenses available with respect to such claimaction, suit or proceeding, the indemnifying reasonable fees and expenses of counsel to the Indemnified Person shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the indemnified party will proceed defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Person shall not agree to negotiate a resolution any settlement of such disputeaction, and if not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(e) In suit or proceeding without the event any indemnified party has a claim against any indemnifying party that does not involve a Third Party Claim, the indemnified party shall deliver a Claim Notice with reasonable promptness to the indemnifying party. If the indemnifying party notifies the indemnified party that it does not dispute the claim described in such Claim Notice or fails to notify the indemnified party within the Dispute Period whether the indemnifying party disputes the claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability prior written consent of the indemnifying party and the indemnifying party Indemnification Representatives, which shall pay the amount not be unreasonably withheld. The Indemnification Representatives shall not agree to any settlement of such Loss to action, suit or proceeding without the indemnified party on demand. If prior written consent of the indemnifying party has timely disputed its liability with respect to such claimIndemnified Person, the indemnifying party and the indemnified party will proceed in good faith to negotiate a resolution of such dispute, and if which shall not resolved through negotiations within a reasonable period of time, such dispute shall be resolved by litigation in a court of competent jurisdictionunreasonably withheld.
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