Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action. B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation. C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation. D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party. E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation. F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents. G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 2 contracts
Sources: Master Transaction Agreement (Meritage Homes CORP), Master Transaction Agreement (Meritage Homes CORP)
Procedure for Indemnification. A. The following provisions shall apply to any Claims for which an Indemnifying Party may be obligated to indemnify an Indemnified Party pursuant to this Agreement:
(i) upon receipt from a third party by the Indemnified Party of notice of a Claim or the Indemnified party becoming aware of a Claim in respect of which is entitled the Indemnified Party proposes to be indemnified hereunder (demand indemnification from the "INDEMNIFIED PARTY") Indemnifying Party, the Indemnified Party shall promptly give notice hereunder to the party required that effect to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claimwith reasonable promptness, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any that failure of an Indemnified Party to give such notice, or delay by notice shall not relieve an Indemnifying Party from any liability it may have to the Indemnified Party in giving such notice, unless, and then only except to the extent thatthat the Indemnifying Party is prejudiced thereby;
(ii) in the case of Claims arising from third parties, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result the right by notice to the Indemnified party not later than thirty (30) days after receipt of the failure notice described in paragraph (i) above to giveassume the control of the defense, compromise or delay in givingsettlement of the Claims, provided that such notice. Failure assumption shall, by an Indemnifying Party its terms, be without costs to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to and the Indemnifying Party shall at the Indemnified Party's request furnish it with reasonable security against any costs or other liabilities to which it may be deemed a waiver or become exposed by reason of such defense, compromise or settlement;
(iii) upon the assumption of control by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigationas aforesaid, the Indemnifying Party shall take all steps necessary in diligently proceed with the defense defense, compromise or settlement of such claim or litigationthe Claims at its sole expense, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out including employment of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff counsel reasonably satisfactory to the Indemnified Party of a release from all liability and, in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soconnection therewith, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriateshall co-operate fully, and unless but at the expense of the Indemnifying Party, to make available to the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus all pertinent information and witnesses under the Indemnified Party's estimate control, make such assignments and take such other steps as in the opinion of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and counsel for the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect are necessary to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if enable the Indemnifying Party fails to promptly reimburse conduct such defense; provided always that the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on reasonable security from the amount Indemnifying Party for the expense, costs of other liabilities to which it may be or may become exposed by reason of such claimco-operation;
(iv) the final determination of any such Claims arising from third parties, which interest including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or invalidity, as the case may be of such Claims against the Indemnifying Party hereunder; and
(v) should the Indemnifying Party fail to give notice to the Indemnified Party as provided in paragraph (ii) above, the Indemnified Party shall accrue at a rate be entitled to make such settlement of [ * ] per annumthe Claims as in its sole discretion may appear advisable, and such settlement or any other final determination of the Claims shall be binding upon the Indemnifying Party.
Appears in 2 contracts
Sources: Share Exchange Agreement (Spantel Communications Inc), Merger Agreement (Interunion Financial Corp)
Procedure for Indemnification. A. The (a) Whenever any party which becomes aware that any claim is entitled to be indemnified hereunder threatened or asserted against it or the existence of any other circumstances that would occasion the indemnification described in this Section 14 (a "Covered Claim"), such party shall promptly provide the party from whom it is seeking indemnification with a notice (a "INDEMNIFIED PARTYClaim Notice") shall promptly give notice hereunder of such Covered Claim pursuant to the provisions of Section 19 hereof. Failure to give such notice promptly shall not relieve the Assuming Party (defined below) of its indemnification obligations hereunder except to the extent it actually is prejudiced by such failure. Each Claim Notice shall describe the Covered Claim, the party required to indemnify threatening or asserting it (if applicable), the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against relief sought, and the indemnifying party because of basis for indemnification hereunder with respect thereto. In the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim case of a third partythird-party claim, shall permit the Indemnifying Party to party receiving such notice may, at its option, assume the defense of any such claim and any litigation resulting from such claimCovered Claim (the "Assuming Party"), provided that, Buyer within forty (40) days after the Claim Notice is given (or Meritage maysooner, if the nature of the Covered Claim so requires), the party receiving such notice shall have given notice to the other party (the "Notifying Party"), pursuant to the provisions of Section 19 hereof, of its election to assume such defense, whether or not the Assuming Party acknowledges its obligation to indemnify the Notifying Party in their discretionconnection with such Covered Claim. If the defense is so assumed by the Assuming Party with counsel reasonably acceptable to the Notifying Party, undertakethe Notifying Party shall be entitled to participate in (but not control, at Sellerwhich shall be solely the Assuming Party's cost and expense, right if the Assuming Party assumes the defense) the defense of the Covered Claim with its own counsel at its own expense, and the Notifying Party shall provide such cooperation at the expense of the Assuming Party (including but not limited to providing available information and personnel to the Assuming Party) as the Assuming Party shall reasonably request to facilitate such defense. The Assuming Party shall have the right to defend and/or settle any claim for which Seller is responsible hereunder such Covered Claim on such terms and conditions and in such amounts as it deems appropriate, and the Notifying Party shall promptly execute all documents reasonably requested of it with respect to any lotssuch defense and/or settlement; provided, landhowever, rights any such settlement shall include an unconditional release by the claimant of all indemnified persons with respect to purchase lots or land, project or subdivision within such Covered Claim and the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder indemnified persons shall not be affected by required to take any failure action other than the delivery of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such noticerelease. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes party receiving the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party notice does not assume the defense of any such claim by a third party given Covered Claim pursuant hereto or litigation after receipt fails to notify the Notifying Party of notice from the Indemnified Party to do soits election hereunder, the Indemnified Party may party giving the notice shall defend against such claim or litigation Covered Claim in such manner manner, and/or settle such Covered Claim on such terms, as it deems appropriateshall, in its sole reasonable judgment, determine to be appropriate under the circumstances and unless such action shall be binding on the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party parties for the amount purposes of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to 14. Notwithstanding the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.foregoing,
Appears in 2 contracts
Sources: Asset Purchase Agreement (Airgas Mid South Inc), Asset Purchase Agreement (Nitrous Oxide Corp)
Procedure for Indemnification. A. The party (a) If any Action shall be threatened or instituted or any demand shall be asserted against any Indemnified Party in respect of which is entitled to indemnification may be indemnified hereunder (sought under the "INDEMNIFIED PARTY") provisions of this Agreement, the Indemnified Party shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining cause written notice of the assertion of any claim as such demand or Action of which it has knowledge to be forwarded to the Indemnifying Party. Such notice shall contain a reference to the provisions hereof or of such other agreement, instrument or certificate delivered pursuant hereto, in respect of which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit Action or demand is being made. The Indemnified Party's failure to give the Indemnifying Party prompt notice shall not preclude the Indemnified Party from obtaining indemnification from the Indemnifying Party under this Article IV unless the Indemnified Party's failure has materially prejudiced the Indemnifying Party's ability to assume defend the defense of any such claim and any litigation resulting from such claim, provided that, Buyer demand or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real PropertyAction. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure right to givepay, settle, or delay compromise any Action or demand that is solely for money damages, provided that in giving, such notice. Failure by an Indemnifying Party to notify an event the Indemnified Party of its election shall waive any right to defend any such claim or action by a third party within 10 days after notice thereof indemnity therefor hereunder and shall have been given provide to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim Action or litigationdemand.
C. (b) If the Indemnified Party seeks indemnification from the Indemnifying Party as a result of an Action or demand being made by a third party (a "Third Party Claim"), the Indemnifying Party shall have the right to promptly assume the control of the defense of any Action with respect to such Third Party Claim, including, at its own expense, employment by it of counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does elects not to assume the control of the defense of any such claim by a third party or litigation after receipt Third Party Claim (which shall be without prejudice to its right at any time to assume subsequently the control of notice from such defense), the Indemnifying Party will nonetheless be entitled, at its own expense, to participate in such defense. The Indemnified Party to do somay, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriateits sole discretion and, and unless if the Indemnifying Party shall deposit with have assumed the Indemnified control of the defense of the Action, at its own expense, employ counsel to represent it in the defense of the Third Party a sum equivalent to the total amount demanded Claim, and in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and event counsel for the Indemnifying Party shall promptly reimburse the Indemnified Party cooperate with counsel for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigationdefense, whether or not resulting fromprovided that, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse shall have assumed the Indemnified Party for control of the amount defense of any valid indemnification claim hereunderthe Action, the Indemnifying Party shall be entitled to interest on direct and control the amount defense of such claimThird Party Claim or proceeding. Without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim or consent to the entry of any judgment with respect thereto, except in the case of any settlement that includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim. In addition, except as provided in the last sentence of Section 4.4(a), whether or not the Indemnifying Party shall have assumed the defense of the Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the Indemnifying Party (which interest consent shall accrue at a rate not be unreasonably withheld or delayed), and the Indemnifying Party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an Indemnified Party without such prior written consent of [ * ] per annumthe Indemnifying Party.
Appears in 2 contracts
Sources: Distribution Agreement (Norfolk Southern Corp), Distribution Agreement (Norfolk Southern Railway Co /Va/)
Procedure for Indemnification. A. The (a) If any claim is asserted against a party as to which is such party may be entitled to be indemnified indemnification hereunder (a “Claim”), such party (the "INDEMNIFIED PARTY"“Indemnified Party”) shall promptly give notice hereunder to notify the party required to indemnify provide indemnification (the "INDEMNIFYING PARTY"“Indemnifying Party”) of the commencement of such Claim. Such notice shall be in writing and shall be given within ten (10) days after obtaining written receipt by the Indemnified Party of notice of any the Claim, and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such claim as to which recovery may be sought against and the indemnifying party because amount of Damages claimed; provided, however, that no delay or failure on the part of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligation hereunder, except to the extent of any Damage, liability or prejudice actually caused by or arising from such delay or failure. Within twenty (20) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of the Claim, with counsel reasonably satisfactory to the Indemnified Party; provided that:
(i) the Indemnifying Party may only assume control of such defense if:
(A) it acknowledges in writing to the Indemnified Party that any Damages, fines, costs or other liabilities which may be assessed against the Indemnified Party in connection with such Claim constitute Damages for which the Indemnified Party shall be indemnified by the Indemnifying Party pursuant to this Article 10, and
(B) the ad damnum of the Claim is less than or equal to the amount of Damages for which the Indemnifying Party may be liable pursuant to this Article 10, and
(ii) the Indemnifying Party may not assume control of the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, Claim in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller criminal liability is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such noticeasserted, or delay by an in which equitable relief is sought, against the Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or actionParty.
B. (b) If the Indemnifying Party assumes does not, or is not permitted under the terms hereof to, assume control of the defense of a Claim, the Indemnified Party shall control such defense. Whichever party, whether the Indemnified Party or the Indemnifying Party, does not control the defense of a claim (the “Non-Controlling Party”) may participate in such defense at its own expense. Whichever party, whether the Indemnified Party or the Indemnifying Party controls the defense of a claim (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such Claim and the defense thereof, and shall consider, in good faith, any recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Claim, including copies of any summons, complaint or other pleading which may have been served on such Non-Controlling Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same, and shall otherwise cooperate and assist the Controlling Party in the defense of such claim or litigation, Claim. The expenses and reasonable fees of counsel to the Indemnified Party with respect to a Claim shall be considered Damages for purposes of this Agreement if:
(i) the Indemnified Party controls the defense of such Claim pursuant to the terms of this Section 10.4(b); or
(ii) the Indemnifying Party shall take all steps necessary in the defense or settlement assumes control of such claim or litigation, defense and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or any judgment in connection different defenses available with respect to such claim or litigationClaim. The Indemnifying Party shall notnot agree to any settlement of, in or the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on arising from, any Claim without the merits without costs) except with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or enter into delayed. The Indemnified Party shall not agree to any settlement (except with of, or the entry of any judgment arising from, any such Claim without the prior written consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to If the Indemnified Party of seeks indemnification with respect to any matter that does not involve a release from all claim asserted by a third party, the Indemnified Party shall give written notice to the Indemnifying Party promptly after discovering the Damages or other liability in respect of and the facts giving rise to such claim or litigation.
C. for indemnification, describing the nature of the claim in reasonable detail, the amount of Damages related thereto (if known and quantifiable or, if not, a good faith estimate thereof), and the basis for indemnification hereunder. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from notify the Indemnified Party to do so, within fifteen (15) days from the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless Indemnifying Party’s receipt of the indemnity notice that the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in disputes such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderclaim, the Indemnifying Party shall be entitled deemed to interest on have accepted and agreed to indemnify the amount Indemnified Party from and against the entirety of the Damages described in the indemnity notice. If the Indemnifying Party has delivered an indemnity dispute notice to the Indemnified Party, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such claimdispute. If the parties cannot resolve such dispute in thirty (30) days after delivery of the indemnity dispute notice, which interest such dispute shall accrue at a rate of [ * ] per annumbe resolved through binding arbitration in accordance with Section 2.7(d).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Skilled Healthcare Group, Inc.)
Procedure for Indemnification. A. The (a) An Indemnified Party shall give written notice (a "Claim Notice") to any entity or Person who is obligated to provide indemnification (an "Indemnifying Party") for any claim under this ARTICLE 8 (an "Indemnification Claim"), reasonably promptly, but in any event (A) prior to expiration of any applicable survival period set forth in Section 9.1, and (B) if such Indemnification Claim relates to the assertion against an Indemnified Party of any claim by a third party which (a "third party action"), within forty-five (45) days after receipt by the Indemnified Party of written notice of a legal process relating to such third party action; provided, however, that the failure to so notify the Indemnifying Party within such time period shall not relieve the Indemnifying Party of any obligation or liability to the Indemnified Party, except to the extent that the Indemnifying Party demonstrates that its ability to resolve such Indemnification Claim is materially and adversely affected thereby. An Indemnified Party shall not submit a Claim Notice unless it certifies in writing that it believes in good faith that it is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder with respect to the party required to indemnify Damages specified in such Claim Notice.
(the "INDEMNIFYING PARTY"b) after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit Unless the Indemnifying Party to assume contests the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, Indemnification Claim in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been writing given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation within thirty (30) days after receipt of notice from a Claim Notice and describing in reasonable detail the Indemnified Party to do sobasis for contesting the Indemnification Claim, the Indemnified Party may defend against shall, subject to the other terms of this ARTICLE 8, be paid the amount of Damages related to such claim Indemnification Claim or litigation in such manner as it deems appropriate, and unless the uncontested portion thereof. An Indemnifying Party shall deposit with not contest any Indemnification Claim (or any portion thereof) unless it certifies in writing that it believes in good faith that the Indemnified Party a sum equivalent is not entitled to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered be indemnified with respect to any claim or litigation by a third party the Damages specified in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Propertyclaim. Any such set-off will disputed Indemnification Claim shall be against future lot takedowns resolved either (i) in a written agreement signed by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all or (ii) by the final decision of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment a court or other trier of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documentsfact.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 2 contracts
Sources: Asset Purchase Agreement (NCR Corp), Asset Purchase Agreement (NCR Corp)
Procedure for Indemnification. A. The Within ninety (90) days after the incurrence of any Claims by any of the Purchaser Indemnified Parties or Vendor Indemnified Parties entitled to indemnification pursuant to this Article 7 (an “Indemnified Party”), including any Claim by a third party described in Section 7.6, which might give rise to indemnification hereunder, the Indemnified Party will deliver to the Party from which indemnification is sought (the “Indemnifying Party”) a certificate (the “Certificate”), which Certificate will:
(a) state that the Indemnified Party has paid or properly accrued losses or anticipates that it will incur liability for losses for which such Indemnified Party is entitled to indemnification pursuant to this Agreement;
(b) specify in reasonable detail each individual item of loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated liability and the nature of the misrepresentation, breach of warranty, breach of covenant or Claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be indemnified hereunder entitled hereunder; and
(the "INDEMNIFIED PARTY"c) shall promptly give notice hereunder be delivered to the party required to indemnify (Indemnifying Party. In the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit event that the Indemnifying Party objects to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such noticein respect of any Claim or Claims specified in any Certificate, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to givewill, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 30 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver receipt by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigationCertificate, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff deliver to the Indemnified Party a notice to such effect and the Indemnifying Party and the Indemnified Party will, within the 30-day period beginning on the date of a release from all liability in respect receipt by the Indemnified Party of such claim or litigation.
C. objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such Claims to which the Indemnifying Party will have so objected. If the Indemnified Party and the Indemnifying Party succeed in reaching agreement on their respective rights with respect to any of such Claims, the Indemnified Party and the Indemnifying Party will promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then the Indemnified Party and the Indemnifying Party will submit such dispute to a court of competent jurisdiction. The Party which receives a final judgment in such dispute will be indemnified and held harmless for all reasonable attorney and consultant’s fees or expenses by the other Party. Claims specified in any Certificate to which an Indemnifying Party does not assume the defense object in writing within 10 days of any such claim by a third party or litigation after receipt of notice from such Certificate and Claims the Indemnified Party to do sovalidity and amount of which have been the subject of a final judicial determination, or have been settled with the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless consent of the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded Party, as described in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the sameSection 7.6, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect are hereinafter referred to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their optioncollectively, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents“Agreed Claims”.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Share Purchase Agreement
Procedure for Indemnification. A. (a) The party which is entitled following procedures shall apply to be indemnified hereunder (any claim for indemnification made by the "INDEMNIFIED PARTY") shall promptly give notice hereunder ACX Group or the CTI Group pursuant to the party required indemnities provided in Section 5.02 of this Agreement and pursuant to indemnify any indemnities provided in any Related Agreement unless such Related Agreement establishes other procedures with respect to indemnities thereunder.
(the "INDEMNIFYING PARTY"b) after obtaining written If ACX or CTI shall receive notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a Action by any third party, shall permit the Indemnifying or any fact or allegation upon which such Action could be based (hereinafter a "Third Party to assume the defense of any such claim and any litigation resulting from such claimClaim"), provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to which the other party is or may be obligated to make an Indemnity Payment, it shall give such other party prompt notice thereof (including any lotspleadings relating thereto), land, rights specifying in reasonable detail the nature of such Third Party Claim and the amount or estimated amount thereof to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder extent then feasible (which estimate shall not be affected by any conclusive of the final amount of such Indemnity Payment); provided, however, that the failure of an Indemnified Party a party to give such noticenotice as provided in this Section 5.03 shall not relieve the other party of its indemnification obligations under this Article V, or delay by an Indemnified Party in giving such notice, unless, and then only except to the extent thatthat such other party is actually prejudiced by such failure to give notice.
(c) For any Third Party Claim upon which notice is required to be given under paragraph (b) of this Section 5.03, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result defend such Third Party Claim at its sole cost and expense and through counsel employed by the Indemnifying Party and reasonably acceptable to the Indemnitee. Within 30 days of receipt of the failure to givenotice of Third Party Claim received under paragraph (b), or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall give notice of its intent to defend or objection to the claim of indemnification specifying in reasonable detail the grounds therefore. Failure to provide such notice within such 30-day period shall be deemed a waiver acknowledgment by the Indemnifying Party of its indemnity obligation for the Third Party Claim.
(d) The Indemnifying Party's right to defend any Third Party Claim includes the right to control, manage and direct the defense of the Third Party Claim and to compromise, settle or consent to the entry of any judgment or determination of liability concerning such claim Third Party Claim; provided, however, that the Indemnifying Party shall not compromise, settle or actionconsent to the entry of judgment or determination of liability against the Indemnitee without prior written approval by the Indemnitee, which approval shall not be unreasonably withheld; provided, however, that if the Indemnifying Party shall seek the approval of the Indemnitee to a settlement for monetary damages for which the Indemnifying Party accepts responsibility and if the Indemnitee shall withhold approval of such settlement, then the obligation of the Indemnifying Party shall be limited to the amount of the proposed and unapproved settlement, plus attorney's fees and costs to the date of the proposed settlement, and the Indemnitee shall be solely responsible for any additional amount.
B. (e) The Indemnitee may participate in the Indemnifying Party's defense of any Third Party Claim in which the Indemnitee has an interest and be represented by counsel of its own choosing at the Indemnitee's sole cost and expense.
(f) If the Indemnifying Party assumes fails to defend a Third Party Claim, the defense Indemnitee may defend and may compromise and settle or consent to an entry of judgment or a determination of liability concerning such claim or litigationThird Party Claim at the sole cost and expense of the Indemnifying Party.
(g) Regardless of the party that defends a Third Party Claim, the other shall make available to the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigationemployees, Books and Records, communications, and will hold the Indemnified Party harmless from documents, within its possession or control that are necessary, appropriate or reasonably deemed relevant with respect to such defense, and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party otherwise shall not, reasonably cooperate in the defense of such claim the Third Party Claim.
(h) With respect to any Third Party Claim, neither party to this Agreement shall enter into any compromise or any litigation resulting therefrom, settlement or consent to the entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party third party of a release release, from all further liability in respect concerning such Third Party Claim, of such claim or litigationthe other party to this Agreement.
C. If the Indemnifying Party does not assume the defense (i) Upon final judgment after exhaustion of all appeals, settlement, compromise or other final resolution of any such claim by a third party or litigation after receipt of notice from the Indemnified Third Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriateClaim, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred otherwise agreed by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderparties, the Indemnifying Party shall pay promptly on behalf of the Indemnitee, or to the Indemnitee in reimbursement of any amount theretofore required to be entitled to interest on paid by it, the amount so determined by final judgment after exhaustion of all appeals, settlement, compromise or final resolution. Upon the payment in full by the Indemnifying Party of such claimamount, which interest the Indemnifying Party shall accrue at a rate succeed to the rights of [ * ] per annumsuch Indemnitee, to the extent not waived in settlement, against any third party.
Appears in 1 contract
Procedure for Indemnification. A. The (a) If any party which is entitled to be indemnified hereunder pursuant to Section 6 (an "Indemnified Party") receives notice of the assertion by any third party of any ------------------ claim or of the commencement by any such third person of any Action, or if the Indemnified Party determines the existence of any such claim or the commencement by any such third party of any Action, whether or not the same shall have been asserted (any such claim or Action being referred to herein as an "Indemnifiable ------------- Claim") with respect to which another party hereto (an "Indemnifying Party") is ----- ------------------ or may be obligated to provide indemnification, the Indemnified Party shall notify the Indemnifying Party in writing (the "INDEMNIFIED PARTYClaim Notice") shall promptly give notice hereunder to of the party required to indemnify ------------ Indemnifiable Claim within thirty (30) days of the "INDEMNIFYING PARTY"assertion of the claim, liability or obligation and within ten (10) after obtaining written days of receipt of notice of the filing of any Action based upon such assertion, or, with respect to a claim as to which recovery may be sought not yet asserted against the indemnifying party because Indemnified Party, promptly upon the determination by an executive officer of the indemnity in Section 1 and Section 2 hereof andIndemnified Party of the existence of the same; provided, if that the failure to provide such indemnity notice shall arise from not relieve or otherwise -------- affect the claim obligation of a third party, shall permit the Indemnifying Party to assume provide indemnification hereunder, except to the defense extent that any Damages directly resulted or were caused by such failure.
(b) The Indemnifying Party shall have thirty (30) days after receipt of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, the Claim Notice to undertake, conduct and control, through counsel of its own choosing, and at Seller's cost and its expense, the settlement or defense of any claim for which Seller is responsible hereunder with respect to any lotsthereof, land, rights to purchase lots or land, project or subdivision within and the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified shall cooperate with the Indemnifying Party in giving connection therewith if such noticecooperation is so requested and the request is reasonable, unless, and then only to the extent that, the rights and remedies of provided that the Indemnifying Party shall have been prejudiced as a result of hold the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party harmless -------- from all of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to out-of-pocket expenses, including attorneys' fees (including the Indemnifying Party shall be deemed a waiver by allocated costs and expenses of in-house counsel and legal staff), incurred in connection with the Indemnifying Party of its right to defend such claim or action.
B. Indemnified Party's cooperation. If the Indemnifying Party assumes responsibility for the settlement or defense of any such claim or litigationclaim, (i) the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold permit the Indemnified Party harmless from to participate in such settlement or defense through counsel chosen by the Indemnified Party (subject to the consent of the Indemnifying Party, which consent shall not be unreasonably withheld), provided that, other than in the event of a conflict of -------- interest requiring the retention of separate counsel, the fees and against any and all damages caused by or arising out expenses of any settlement approved such counsel shall not be borne by the Indemnifying Party or any judgment in connection with such claim or litigation. The Party, and (ii) the Indemnifying Party shall not, in the defense of such claim or not settle any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits Indemnifiable Claim without costs) except with the written consent of the Indemnified Party's consent, which consent shall not be unreasonably withheld or enter into delayed if the settlement involves only payment of money, and which consent may be withheld for any reason if the settlement (except with involves more than the written consent payment of money, including any admission by the Indemnified Party) which does not include . So long as an unconditional term thereof the giving by the claimant or the plaintiff to Indemnifying Party is vigorously contesting any such Indemnifiable Claim in good faith, the Indemnified Party of a release from all liability in respect of shall not pay or settle such claim or litigationwithout the Indemnifying Party's consent, which consent shall not be unreasonably withheld.
C. (c) If the Indemnifying Party does not assume notify the Indemnified Party within thirty (30) days after receipt of the Claim Notice that it elects to undertake the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soIndemnifiable Claim described therein, the Indemnified Party may defend against such claim shall have the right to contest, settle or litigation compromise the Indemnifiable Claim in such manner as it deems appropriatethe exercise of its reasonable discretion; provided, and unless that -------- the Indemnified Party shall notify the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against any compromise or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigationIndemnifiable Claim.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any If a claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given is made against any party hereto, and such party (the "Indemnified Party") intends to the Indemnifying seek indemnity with respect to such claim under this Section IX, such Indemnified Party shall promptly notify the party from whom such indemnity may be deemed a waiver by sought (the "Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense Party") of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationclaim. The Indemnifying Party shall nothave thirty (30) days after receipt of the above-mentioned notice to undertake, in the defense conduct and control, through counsel of such claim or any litigation resulting therefrom, consent party's own choosing (subject to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, such consent not to be unreasonably withheld) and at such party's expense, the settlement or enter into any settlement (except with the written consent defense of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to it, and the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If shall cooperate with the Indemnifying Party does in connection with such efforts; provided that: (i) the Indemnifying Party shall not assume the defense by this Agreement permit to exist any lien, encumbrance or other adverse charge upon any asset of any such claim by a third party or litigation after receipt of notice from Indemnified Party, (ii) the Indemnifying Party shall permit the Indemnified Party to do so, participate in such settlement or defense through counsel chosen by the Indemnified Party may defend against Party, provided that the fees and expenses of such claim or litigation in such manner as it deems appropriatecounsel shall be borne by the Indemnified Party, and unless (iii) the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent agree promptly to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the full amount of any loss resulting from such settlement claim and for all damages related expense incurred by the Indemnified Party pursuant to this Section IX. So long as the Indemnifying Party is reasonably contesting any such claim in connection with good faith, the Indemnified Party shall not pay or settle any such claim. If the Indemnified Party does not notify the Indemnified Party within thirty (30) days after receipt of the Indemnified Party's notice of a claim of indemnify under this Section IX that such party elects to undertake the defense against or settlement of such claim, the Indemnified Party shall have the right to contest, settle or compromise the claim or litigation.
D. The in the exercise of the Indemnified Party's exclusive discretion at the expense of the Indemnifying Party, and the Indemnifying Party shall promptly reimburse within 30 days after receipt of notice of such settlement or compromise pay to the Indemnified Party the amount of expenses and damages as a result of contesting, settling or compromising such claim. In the event that any party hereto shall incur any Damages in respect of which indemnity may be sought by such party pursuant to this Section IX, the party from whom such indemnity may be sought (the "Indemnifying Party") shall be given written notice thereof by the party seeking such indemnity (the "Indemnified Party"), which notice shall specify the amount and nature of such Damages and include the request of the Indemnified Party for indemnification of such amount. The Indemnifying party shall within 30 days pay to the Indemnified Party the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partyDamages so specified.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ea Industries Inc /Nj/)
Procedure for Indemnification. A. The (a) In the event a party which is entitled intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 7.2 or 7.4 hereof (the "INDEMNIFIED PARTY") “Indemnified Party”), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTY"“Indemnifying Party”) of a claim and such other information the Indemnified Party may have relating to the underlying basis for the claim, or after obtaining written notice of any claim claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or Proceeding in any action instituted against the Indemnified Party as to which recovery or other action may be sought against the indemnifying party Indemnified Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 7.2 or 7.4 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; provided, provided thathowever, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder with respect to or Proceeding which, if not first paid, discharged or otherwise complied with, would result in a material interruption or disruption of the business of the Indemnified Party, or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 thirty (30) days after written notice thereof shall have been given to and acknowledged by the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. (b) If the Indemnifying Party assumes the defense of such claim claim, investigation or litigationProceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall take include taking all steps necessary in the defense or settlement of such claim claim, investigation or litigation, Proceeding and will hold holding the Indemnified Party harmless from and against any and all damages caused by losses arising from, in connection with or arising out of incident to any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim claim, investigation or litigationProceeding, except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnifying Party shall not, in the defense of such claim or any litigation Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned) which does not unless (i) there is no finding or admission of any violation of Applicable Law and no material effect on any claims that could reasonably be expected to be made by or against the Indemnified Party, (ii) the sole relief provided is monetary damages that are paid in full for losses, and (iii) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability Liability in respect of to such claim or litigation. In the event the Indemnified Party unreasonably withholds, delays or conditions its consent to a settlement agreed to by a third party claimant, the liability of the Indemnifying Party for such claim shall be limited to the amount of such settlement, plus the amount of any litigation costs or expenses incurred by the Indemnified Party through the date its consent to the settlement was requested and the Indemnified Party shall indemnify and hold harmless the Indemnifying Party against any Damages suffered by the Indemnifying Party as a result of the Indemnified Party’s unreasonably withholding, delaying or conditioning its consent to such settlement.
C. (c) If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party, or (ii) the Indemnifying Party’s legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel and the Indemnifying Party refuses to retain separate counsel for the Indemnified Party. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party, but in no event shall the Indemnifying Party be obligated to pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action or Proceeding in any one jurisdiction.
(d) If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt and acknowledgment by it of written notice from the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it deems is reasonably appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's ’s estimate of the costs cost (including attorneys’ fees) of defending the same, the Indemnified Party may settle such claim or litigation Proceeding on such terms as it may reasonably deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all reasonable costs (including attorneys’ fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim, investigation or litigation, or if any such claim or litigation.
D. The litigation is not so settled, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any final nonappealable judgment rendered with respect to any claim or litigation by a third party in such litigation and for all costs (including attorneys’ fees), expenses and damage reasonably incurred by the Indemnified Party in connection with the defense against of such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything (e) Each party shall cooperate in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, good faith and in all respects with counsel of each Indemnifying Party and its choice and at representatives (including without limitation its expense, participate counsel) in the investigation, negotiation, settlement, trial and/or defense of any such claim or litigation.
F. Buyer Proceedings (and Meritage may at their option set-off any of Seller's indemnification obligations appeal arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amounttherefrom) or any of the Transaction Documents.
G. claim. The parties agree that if the Indemnifying Party fails shall cooperate with each other in any notifications to promptly reimburse the Indemnified Party for the amount and information requests of any valid indemnification claim hereunderinsurers. No individual representative of any Person, the Indemnifying Party or their respective Affiliates shall be entitled personally liable for any loss or losses under this Agreement, except as specifically agreed to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumby said individual representative.
Appears in 1 contract
Procedure for Indemnification. A. The If there is asserted any claim, liability or obligation that in the judgment of a party which is entitled to be indemnified hereunder above (the "INDEMNIFIED PARTY") may give rise to any Purchaser Loss or Seller Loss (collectively, "INDEMNIFIED LOSS"), or if such Indemnified Party determines the existence of the foregoing, whether or not the same shall have been asserted, such Indemnified Party shall give the party from whom indemnity is sought ("INDEMNITOR") notice (including reasonable detail of the facts giving rise to same) within thirty (30) Business Days of the assertion of any claim, liability or obligation, or within ten (10) Business Days of receipt of notice of the filing of any lawsuit based upon such assertion, or, with respect to a claim not yet asserted against Indemnified Party, promptly upon the determination by Indemnified Party of the existence of the same. Indemnitor shall have the right to assume the defense of such claim, liability or obligation provided that Indemnitor retains experienced counsel reasonably satisfactory to Indemnified Party and provided that Indemnitor is reasonably able to meet its likely indemnification obligations; PROVIDED, Indemnified Party shall cooperate with Indemnitor in any such defense which Indemnitor assumes in the event Indemnitor makes such request to Indemnified Party and such request is reasonable. Indemnified Party shall have the right to participate in such defense, PROVIDED, HOWEVER, that if Indemnified Party retains separate counsel, Indemnified Party shall assume the expense of the separate counsel. No settlement or adjustment shall be made without Indemnified Party's prior written consent (which consent shall not be unreasonably withheld) and, provided that Indemnitor is reasonably able to meet its likely indemnification obligations, Indemnitor's prior written consent (which consent shall not be unreasonably withheld). Failure by Indemnified Party to give timely notice hereunder pursuant to this SECTION 5.3 shall not relieve Indemnitor of its obligations, except to the party required extent that Indemnitor is actually prejudiced by such failure to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party give timely notice. If Indemnitor elects not to assume the defense of any such claim and any litigation resulting from claim, liability or obligation, Indemnified Party shall conduct such defense or settle such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense following conclusion of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend claim against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigationIndemnitor hereunder.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Partnership Interest Purchase and Sale Agreement (Panda Global Holdings Inc)
Procedure for Indemnification. A. (a) The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give written notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim as to which recovery recover), may be sought against the indemnifying party Indemnifying Party because of the indemnity in Section 1 10.2 and Section 2 10.3 hereof and, if such ------------ ------------ indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, notice unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 thirty (30) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If (b) Subject to Section 10.2 or Section 10.3, as applicable, if the ------------ ------------ Indemnifying Party assumes the defense of such claim or litigationlitigation resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim shall take include taking all steps necessary in the defense or settlement of such claim or litigationlitigation (including, without limitation, using reasonable efforts to substitute itself as the real party-in-interest in any such claim or litigation to the extent a procedure for such substitution is available) and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation. Anything in this Section 10.4 to the contrary notwithstanding, the ------------ Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation. In all cases, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of claims or litigation, including by making employees, information, and documentation reasonably available.
C. (c) If the Indemnifying Party does shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the such Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and and, subject to Section 10.2 or Section 10.3, as applicable, ------------ ------------ the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The (d) Subject to Section 10.2 or Section 10.3, as applicable, the ------------ ------------ Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any an), claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wesley Jessen Holding Inc)
Procedure for Indemnification. A. The party (1) If any person who or which is entitled to be indemnified hereunder seek indemnification under Section 13(b) or 13(c) (the an "INDEMNIFIED PARTYIndemnified Party") shall promptly give receives notice hereunder of the assertion or commencement of any claim, demand, action, suit or proceeding made or brought by any person who or which is not a party to the party required to indemnify this Agreement (the a "INDEMNIFYING PARTYThird Party Claim") against such Indemnified Party with respect to which the person against whom or which such indemnification is being sought (an "Indemnifying Party") is obligated to provide indemnification under this Agreement, the Indemnified Party shall give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after obtaining receipt of such written notice of any claim as to which recovery such Third Party Claim. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all available material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sought against sustained by the indemnifying party because Indemnified Party. The Indemnifying Party shall have the right to participate in, or, by giving written notice to the Indemnified Party, to assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the indemnity Indemnified Party), and the Indemnified Party shall cooperate in Section 1 and Section 2 hereof andgood faith in such defense.
(2) If, if such indemnity shall arise from the claim within 30 days after giving notice of a third partyThird Party Claim to an Indemnifying Party, shall permit an Indemnified Party receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Third Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigationClaim, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against not be liable for any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages legal expenses subsequently incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigationthereof; provided, whether or not resulting fromhowever, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT"i) will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse take reasonable steps necessary to defend diligently such Third Party Claim within 30 days after receiving written notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all Damages relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party shall be liable for all reasonable costs and expenses paid or incurred in connection therewith; and (ii) the Indemnified Party may employ separate counsel, and the Indemnifying Party shall bear the reasonable expenses of such separate counsel, if in the written opinion of counsel to the Indemnified Party use of counsel of the Indemnifying Party's choice would be expected to give rise to a conflict of interest. Without the prior written consent of the Indemnified Party, the Indemnifying Party shall not enter into any settlement of any Third Party Claim that would lead to loss, liability or create any financial or other obligation on the part of the Indemnified Party for which the amount Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or does not include an unconditional release of all Indemnified Parties.
(3) Any claim by an Indemnified Party on account of Damages that does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any valid indemnification claim hereunderevent not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all available material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have a period of 30 days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 30-day period, the Indemnifying Party shall be entitled deemed to interest on the amount of have rejected such claim, in which interest event the Indemnified Party shall accrue at be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(4) A failure to give timely notice or to include any specified information in any notice as provided in this Section 13(d) shall not affect the rights or obligations of any party hereunder, except and only to the extent that, as a rate result of [ * ] per annumsuch failure, any party that was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise prejudiced as a result of such failure.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Tonerserv Corp.)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder Except as otherwise provided in Section 8.4(b):
(a) If an Indemnified Buyer Party or an Indemnified Seller Party seeks indemnification under Sections 9.1 or 9.2, such Person (the "INDEMNIFIED PARTY"“Indemnified Party”) shall promptly give written notice hereunder to the party required to indemnify other Person (the "INDEMNIFYING PARTY"“Indemnifying Party”) after obtaining written notice of any claim as to which recovery may be sought against specifying in reasonable detail the indemnifying party because of basis for the indemnity in Section 1 and Section 2 hereof andclaim. In that regard, if such indemnity any Liability shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer be brought or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected asserted by any failure of an third party which, if adversely determined, may entitle the Indemnified Party to give such noticeindemnity pursuant to this Section 9.3 (a “Third Party Claim”), or delay by an the Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to promptly notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its the same in writing, specifying in detail the basis of such Liability and the facts pertaining thereto; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any Liability or Losses hereunder unless the delay in notice has a material adverse effect on the Indemnifying Party’s ability to successfully defend such claim.
(b) Any Indemnifying Party will have the right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out the Third Party Claim with counsel of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff its choice reasonably satisfactory to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If so long as (i) the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from notifies the Indemnified Party to do so, in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Losses the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not suffer resulting from, arising out of, relating to, in the nature of, or incurred caused by the Third Party Claim (with no reservation of any rights), (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the act Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a third party.
E. Anything in this Section 3 precedent, custom or practice materially adverse to the contrary notwithstandingcontinuing business interests of the Indemnified Party, and (v) the party not primarily responsible for Indemnifying Party conducts the defense of a claim or litigation maythe Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 9.3(b) above, with (i) the Indemnified Party may retain separate co-counsel of its choice and at its expense, sole cost and expense and participate in the defense of the Third Party Claim, (ii) the Indemnified Party will not consent to the entry of any such claim judgment or litigationenter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be withheld unreasonably) and (iii) the Indemnifying Party will not consent to the entry or any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be withheld unreasonably).
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against (d) In the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree event that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if conditions in Section 9.3(b) above is or becomes unsatisfied or, in connection with the matters set forth on Schedule 3.8 and the matters described in Section 9.1(ix), however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) the Indemnifying Party fails to promptly will reimburse the Indemnified Party promptly and periodically for the amount costs of any valid indemnification claim hereunderdefending against the Third Party Claim (including attorneys’ fees and expenses), and (iii) the Indemnifying Party shall be entitled will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumfullest extent provided in this Section 9.3.
Appears in 1 contract
Procedure for Indemnification. A. The Each party which is entitled to be indemnified hereunder under subsection (a) or (b) of this Section 2.5 (the "INDEMNIFIED PARTYIndemnified Party") shall shall, promptly give after receipt of actual notice hereunder to of any claim or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought notify the party required to indemnify provide indemnification (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice in writing of the claim or the commencement thereof, provided that the failure of the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any claim as liability which it may have to which recovery may be sought against the indemnifying party because an Indemnified Party on account of the indemnity agreement contained in subsection (a) or (b) of this Section 1 2.5, unless the Indemnifying Party was materially prejudiced by such failure, and Section 2 hereof in no event shall relieve the Indemnifying Party from any other liability which it may have to such Indemnified Party. If any such claim or action shall be brought against an Indemnified Party, it shall notify the Indemnifying Party thereof and the Indemnifying Party shall be entitled to participate therein, and, if such indemnity shall arise to the extent that it wishes, jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes assume the defense of such claim or litigationaction, the Indemnifying Party shall take all steps necessary in not be liable (except to the defense or settlement of such claim or litigation, and will hold extent the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall notproviso to this sentence is applicable, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costswhich event it will be so liable) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim under this Section 2.5 for any legal or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages other expenses subsequently incurred by the Indemnified Party in connection with the defense against thereof other than reasonable costs of investigation; provided that each Indemnified Party shall have the right to employ separate counsel to represent it and assume its defense (in which case, the Indemnifying Party shall not represent it) if (i) upon the advice of counsel, the representation of both parties by the same counsel would be inappropriate due to actual or settlement potential differing interests between them, or (ii) in the event the Indemnifying Party has not assumed the defense thereof within 10 days of receipt of notice of such claim or litigation.
D. commencement of action, and in which case the fees and expenses of one such separate counsel shall be paid by the Indemnifying Party. The Indemnifying Party shall promptly not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one firm for all such Indemnified Parties, unless conflicting interests of the Indemnified Parties make the retention of one firm on behalf of all of them unreasonable. If any Indemnified Party employs such separate counsel it will not enter into any settlement agreement which is not approved by the Indemnifying Party, such approval not to be unreasonably withheld. If the Indemnifying Party so assumes the defense thereof, it may not agree to any settlement of any such claim or action as the result of which any remedy or relief, other than monetary damages for which the Indemnifying Party shall be responsible hereunder, shall be applied to or against the Indemnified Party, without the prior written consent of the Indemnified Party which consent shall not be unreasonably withheld. In any action hereunder as to which the Indemnifying Party has assumed the defense thereof with counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall continue to be entitled to participate in the defense thereof with counsel of its own choice, but, except as set forth above, the Indemnifying Party shall not be obligated hereunder to reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the costs thereof. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense against of such claim or litigation, whether or not and litigation resulting from, arising out of, or incurred with respect to, the act of a third partytherefrom.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tricord Systems Inc /De/)
Procedure for Indemnification. A. The (a) Any party which is entitled to be indemnified hereunder indemnification pursuant to this Article (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give notice hereunder to the party required by the Article to indemnify provide indemnification (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice knowledge of any claim as to which recovery may be sought claims against it covered by the indemnifying party because of the indemnity in Section 1 and Section 2 hereof indemnification provided by this Article ("Claims") and, if such indemnity shall arise from the claim of a third party, shall permit Indemnifying Party to assume the defense, at Indemnifying Party's sole expense, of any such Claims or any litigation resulting from such Claims, provided, however, Indemnified Party shall not be required to permit Indemnifying Party to assume the defense of any such third party claim if time is of the essence and any litigation resulting from such claimwhich if not immediately paid, provided that, Buyer discharged or Meritage mayotherwise complied with would, in their discretionthe reasonable opinion of Indemnified Party, undertakehave a material adverse affect Indemnified Party, at Seller's cost and expense, the defense unless Indemnifying Party provides Indemnified Party with reasonable assurance that Indemnified Party will not suffer such material adverse effect by allowing Indemnifying Party to assume such defense. The right of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, notice or any delay by an Indemnified Party in giving such notice, notice unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its Indemnifying Party's election to defend any such claim or action by a third party within 10 30 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. (b) If the Indemnifying Party assumes the defense of such claim by a third party or litigationlitigation resulting therefrom, as set forth above, the obligation of Indemnifying Party hereunder as to such claim shall take include taking all steps necessary in the defense or settlement of such claim or litigationlitigation resulting therefrom, including, the retention of counsel satisfactory to Indemnified Party, and will hold the holding Indemnified Party harmless from and against any and all damages Claims caused by or arising out of any settlement approved by the Indemnifying Party Party, or any judgment in connection with such claim or litigationlitigation resulting therefrom. The Without the prior written consent of Indemnified Party, Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefromlitigation, consent to the entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) or other compromise which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release release, in form reasonably satisfactory to Indemnified Party, from all liability in respect of such claim or litigation. Notwithstanding the foregoing, Indemnified Party will be entitled: (i) to participate in the defense of such claim or litigation; and (ii) subject to the limitations of any contract of insurance, upon 30 days' prior written notice to Indemnifying Party, to control and manage any defense, provided, however, that if Indemnified Party has already approved of counsel selected by Indemnifying Party, and unless such participation or assumption of control and management of any defense is as a result of the existence of legal defenses available to Indemnified Party as described in the next succeeding sentence, then any such participation or assumption of control or management shall, unless approved by Indemnifying Party, be at Indemnified Party's sole cost and expense, and if Indemnified Party has assumed such control or management, Indemnified Party shall thereafter be responsible for such claim or litigation. If in any such action Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to Indemnifying Party, Indemnified Party shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on its behalf.
C. (c) If the Indemnifying Party does not elect to assume the defense of any such claim by a third party or litigation after receipt of notice from the resulting therefrom, or if Indemnified Party assumes the defense of such claim or litigation pursuant to do soits right described in the proviso to the first sentence of paragraph (a) of this Section, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and and, unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem reasonably deems appropriate and the Indemnifying Party shall shall, in accordance with the provisions hereof, promptly reimburse the Indemnified Party for the amount of such settlement and for all damages losses and expenses incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered . Stockholders agree to cooperate fully with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the conduct of any defense against any such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partyclaim.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT"d) will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest rely upon any notice, certificate, affidavit, letter, document or other communication which is believed by Indemnified Party to be genuine and to have been signed and sent by Indemnifying Party without further inquiry or investigation and to rely on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumstatements contained therein without further inquiry or investigation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Heartland Financial Usa Inc)
Procedure for Indemnification. A. The party Except with respect to Tax Claims and Passthrough Tax Contests, which is entitled to shall be indemnified hereunder governed exclusively by Section 5.2:
(a) An Indemnified Party shall give written notice (the "INDEMNIFIED PARTY"“Claim Notice”) shall promptly give notice hereunder of any Indemnification Claim (i) in the case of an Indemnification Claim against Parent, to Parent, and (ii) in the case of an Indemnification Claim against the Stockholders, to the Stockholder Representative, reasonably promptly, but in any event (A) prior to expiration of any applicable Survival Period, and (B) if such Indemnification Claim relates to the assertion against an Indemnified Party of any Claim by a third party required to indemnify (a “Third Party Claim”), within thirty (30) days after receipt by the "INDEMNIFYING PARTY") after obtaining Indemnified Party of written notice of a legal process relating to such Third Party Claim; provided, however, that the failure to so notify the Indemnifying Party within such time period shall not relieve the Indemnifying Party of any claim as obligation or liability to the Indemnified Party, except to the extent that the Indemnifying Party is materially prejudiced by such failure. A Claim Notice shall describe in reasonable detail (to the extent known), including (i) the facts giving rise to the Indemnification Claim (ii) the amount or method of computation of the amount of such Indemnification Claim, and (iii) the nature of the breach of representation, warranty, covenant or agreement with respect to which recovery may the Indemnified Party claims to be sought entitled to indemnification hereunder.
(b) An Indemnifying Party (or, in the case of an indemnification claim against the indemnifying party because of Stockholders, the indemnity Stockholder Representative) shall have thirty (30) days after a Claim Notice is received to contest such Indemnification Claim in Section 1 writing, describing in reasonable detail the basis for contesting the Indemnification Claim. Disputed Indemnification Claims shall be resolved either (i) in a written agreement signed by Parent and Section 2 hereof andthe Stockholder Representative, if such indemnity shall arise from or (ii) by the claim final judgment, order, award, decision or decree of a third party, court or other trier of fact. Any uncontested or finally adjudicated amount of Losses related to an Indemnification Claim shall permit be paid by the Indemnifying Party to the Indemnified Party, subject to the other terms of this Article VI (provided that in the case of an Indemnification Claim against the Stockholders, Parent shall have the right to permanently retain an amount from any remaining General Indemnity Holdback or Special Indemnity Holdback, as applicable, equal to the uncontested or finally adjusted amount of Losses, subject to Section 6.4(i)).
(c) In the event of an Indemnification Claim against the Stockholders involving a Third Party Claim, if the Stockholder Representative delivers written notice to Parent within thirty (30) days after receiving notice of such Third Party Claim that includes a written acknowledgement of all applicable Indemnifying Parties’ indemnification obligations under this Agreement with respect to such Third Party Claim and full responsibility for all indemnifiable Losses related to such Third Party Claim, the Stockholder Representative may assume the defense of any such claim and any litigation resulting from such claimThird Party Claim; provided, provided that, Buyer however that the Stockholder Representative shall not be entitled to assume or Meritage may, in their discretion, undertake, at Seller's cost and expense, control the defense of a Third Party Claim that (i) seeks an injunction or other equitable relief against Parent or its Affiliates (including the Company or any of its Subsidiaries), (ii) involves criminal allegations or claims by any Governmental Body, (iii) involves any Tax Claim, (iv) involves an amount at issue that is likely to exceed the Holdback Amount, or (v) related to a claim based on breach of the IP Representations. If the Stockholder Representative so assumes and controls any such defense, the Stockholder Representative shall conduct the defense of the Third Party Claim actively and diligently. The Stockholder Representative may not compromise or settle a suit, claim, or proceeding without the consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed) unless (x) it acknowledges that all Losses covered by such settlement are indemnifiable Claims under this Article VI, and (y) it is a Claim for monetary damages only which will be satisfied in full by the Stockholders. In assuming the defense of a matter hereunder, the Stockholder Representative shall have the right to select counsel, provided that Parent does not object to such counsel in a reasonable exercise of its discretion. Parent shall have the right to engage its own counsel who may associate with the counsel designated by the Stockholder Representative (upon the Stockholder Representative’s assumption of the defense of the matter), but the fees and expenses of such counsel shall be at the Parent’s expense, unless (i) the engagement of such counsel shall have been authorized in writing by the Stockholder Representative; (ii) the Stockholder Representative shall have not engaged counsel to take charge of the defense of such action after electing to assume the defense thereof; or (iii) in the reasonable opinion of counsel for Parent, there is a conflict of interest between the Indemnified Party and the Indemnifying Party and that there may be defenses available to it that are different from or in addition to those available to the Stockholder Representative or the Stockholders (in which case the Stockholder Representative shall not have the right to direct the defense of such action on behalf of Parent or the other Parent Indemnified Parties), in any of which events the reasonable fees and expenses of one separate counsel for Parent or any Parent Indemnified Party shall be paid by the Stockholder Representative (on behalf of the Stockholders). The Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to the matter for which Seller is responsible hereunder with respect defense or indemnity has been claimed (subject to any lotslimitations on account of attorney-client or similar privileges), landand each party hereunder will render to the other such assistance as the other may reasonably request in order to assure prompt and adequate defense of any such suit, rights to purchase lots claim, or land, project or subdivision within the Owned Real Property. proceeding.
(d) Notwithstanding the foregoing, in any Third Party Claim in which the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of Stockholders are the Indemnifying Party shall have been prejudiced as a result of and the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party Stockholder Representative does not assume the defense of any such claim Third Party Claim (whether by a third party election or litigation after receipt because the Stockholder Representative does not have, or loses the right to, assume the defense and control of notice from such Third Party Claim), (i) Parent shall have the Indemnified right to conduct the defense of the Third Party Claim and (ii) Parent may settle, adjust or compromise such Third Party Claim with or without the consent of the Stockholder Representative; provided, however, that without the prior written consent of the Stockholder Representative, which shall be deemed to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and have been given unless the Indemnifying Party Stockholder Representative shall deposit with the Indemnified Party have objected within twenty (20) days after a sum equivalent written request for such consent is given to the total amount demanded in such claim Stockholder Representative by Parent, no settlement, adjustment or litigation plus the Indemnified Party's estimate compromise of any Third Party Claim shall be determinative of the costs existence of defending the same, the Indemnified Party may settle such a claim for indemnification under this Article VI or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of Losses relating to such settlement claim. Parent will keep the Stockholder Representative reasonably informed as to, and for all damages incurred by with respect to any Third Party Claim arising out of, relating or based on a breach of the Indemnified Party in connection with IP Representations, give good faith consideration to the views of the Stockholder Representative as to matters relating to, the defense against or settlement resolution of such claim Third Party Claim. In the event that the Stockholder Representative has consented to any such settlement, adjustment or litigation.
D. The Indemnifying Party compromise, neither the Stockholder Representative nor any Stockholder shall promptly reimburse the Indemnified Party for have any power or authority to object under any provision of this Article VI to the amount of any judgment rendered claim by any Parent Indemnified Party against the General Indemnity Holdback or Special Indemnity Holdback Amount or otherwise for indemnity with respect to such settlement, adjustment or compromises, subject to the limitations and terms set forth in this Article VI. Parent shall have the exclusive right to assume and conduct the control of any claim or litigation by a third party in such litigation and for all damage incurred Third Party Claim giving rise to an Indemnification Claim made by the Company Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partyParties.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Merger Agreement (Avalara, Inc.)
Procedure for Indemnification. A. The procedure for indemnification with respect to claims under Section 13.2 and Section 13.5 shall be as follows:
(a) The party which is entitled to be indemnified hereunder claiming indemnification (the "INDEMNIFIED PARTY"“Indemnified Party”) shall promptly give written notice hereunder to the party required to indemnify from whom it is seeking indemnification (the "INDEMNIFYING PARTY") after obtaining written notice “Indemnifying Party”), of any claim as to which recovery may be sought against for indemnification or any other Action or Tax Action promptly after receiving notice or becoming aware thereof (a “Claim Notice”), and such notice shall specify in reasonable detail (i) the indemnifying party because factual basis for such claim, (ii) the amount of the indemnity claim to the extent that it can be reasonably estimated and (iii) the provision of this Agreement under which such indemnification is claimed and a reasonable description of the basis under this Agreement for such claim; provided, however, that, without limiting Section 13.3, any delay by the Indemnified Party in Section 1 giving such notice shall not reduce the Indemnified Party’s right to indemnification under this Agreement except and Section 2 hereof and, if such indemnity shall arise from only to the claim of a third party, shall permit extent that the Indemnifying Party is actually prejudiced by such delay.
(b) If such notice from the Indemnified Party pertains to a claim or demand by a Third Party, then the Indemnifying Party shall have sixty (60) days (or, if applicable, until the substantial completion of discovery in connection with the Action) following receipt of such notice (so long as the Indemnified Party has cooperated with the Indemnifying Party and complied with this Section 13.8) to (i) make such investigation of the claim or demand as the Indemnifying Party deems necessary or desirable and (ii) notify the Indemnified Party of whether or not the Indemnifying Party desires to defend the Indemnified Party against such claim or demand at its sole cost and expense (subject to the limits contained in this Section 13); provided, however, that the Indemnifying Party shall not have the right to defend or direct the defense of any such claim, suit or demand unless (x) such claim, suit or demand does not seek remedies in addition to monetary damages that are reasonably likely to be awarded, (y) the counsel selected by the Indemnifying Party is reasonably satisfactory to the Indemnified Party, and (z) the Indemnified Party is given the opportunity, at its option, to participate at its own cost and expense and with counsel of its own choosing. During such sixty (60)-day (or longer, if applicable) period, the Indemnified Party shall make such filings, including motions for continuance (and answers if a motion for continuance has not been granted), as may be necessary to preserve the parties’ positions and rights with respect to such claim or demand and if the Indemnifying Party desires to assume the defense of any such claim action it shall first acknowledge that it is fully responsible for Losses incurred by the Indemnified Party relating to such Action and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost shall reimburse the Indemnified Party for all reasonable costs and expense, expenses incurred prior to the date that the Indemnifying Party assumed the defense of any such Action.
(c) During the sixty (60)-day (or longer, if applicable) period under Section 13.8(b) and thereafter, if the Indemnifying Party elects to defend the Indemnified Party against such third party claim for which Seller is responsible hereunder or demand in accordance with Section 13.8(b), the Indemnified Party shall cooperate with the Indemnifying Party and its counsel with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action demand, including by a third party within 10 days after notice thereof shall have been given making available to the Indemnifying Party shall be deemed a waiver Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Upon confirmation by the Indemnifying Party of its right desire to defend such claim or action.
B. If the Indemnifying Party assumes assume the defense of such claim or litigationdemand on the terms set forth above, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold not be liable to the Indemnified Party harmless from for any legal fees and against any and all damages caused expenses subsequently incurred by or arising out the Indemnified Party; provided, however, that if, in the reasonable opinion of any settlement approved by outside counsel to the Indemnified Party, there exists a conflict of interest between the Indemnifying Party or and the Indemnified Party, the Indemnifying Party shall be liable for the reasonable legal fees and expenses of one separate counsel to the Indemnified Party. If the Indemnified Party desires to participate in, but not control, any judgment in connection with such claim or litigationdefense, it may do so at its sole cost and expense. The Indemnifying Party shall notkeep the Indemnified Party reasonably informed of all material developments and furnish copies to the Indemnified Party of all material papers filed with a court or sent to or from the opposing party or parties. The Indemnified Party shall not settle, in the defense of such compromise, discharge or otherwise admit to any liability for any claim or demand without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). The Indemnifying Party shall not settle, compromise, discharge or otherwise admit to any litigation resulting therefrom, consent to entry of liability for any judgment (other than a judgment of dismissal on claim or demand without the merits without costs) except with the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless such settlement fully and finally releases the Indemnified Party from all claims and involves only the payment of money.
(d) If the Indemnifying Party elects not to defend the Indemnified Party against such third party claim or demand, the Indemnified Party shall have the right to defend the claim or demand through appropriate proceedings and shall have the sole power to direct and control such defense. The Indemnifying Party shall have the right, at its sole cost and expense, to participate and consult in the defense thereof with counsel of their own choosing and the Indemnified Party shall consider in good faith the reasonable suggestions, comments and concerns of the Indemnifying Party. No such participation shall be deemed an admission that the Indemnifying Party is liable for such claim or demand or that the Indemnified Party is entitled to indemnification hereunder in connection therewith. Notwithstanding the foregoing but subject to the proviso to this sentence, the Seller shall retain and assume the defense of all third party claims with respect to any Action relating to any Excluded Business, at its expense and with counsel of its choice; provided, that the Seller shall not have the right to defend or direct the defense of any Action that relates to an Excluded Business unless such claim, suit or demand does not seek remedies in addition to monetary damages that are reasonably likely to be awarded. The Purchaser shall cooperate with the Seller and its counsel with respect to any such claim or demand with respect to any Excluded Business by providing, at the Seller’s expense, reasonable access to the Real Property, properties, written Contracts and other assets, books and records and officers of the Operating Company and making available to the Seller, at the Seller’s expense, all witnesses, pertinent records, materials and information in the possession of the Purchaser or its Affiliates or under their control relating thereto as is reasonably required by the Seller, or enter into to the extent that the defense of any settlement (except Action relating to the any Excluded Business is not assumed by the Seller then the Seller shall provide such similar cooperation and access as set forth above to the Purchaser in connection with the written consent defense of such Action relating to any Excluded Business. The Seller shall keep the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff Purchaser reasonably informed of all material developments and furnish copies to the Indemnified Party of all material papers filed with a release court or sent to or from all liability in respect the opposing party or parties. No Indemnified Party shall pay or permit to be paid, any part of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party claim relating to any Action relating to any Excluded Business without the prior written consent of the Seller (which consent will not be unreasonably withheld or litigation after receipt delayed), unless the failure to do so would be in violation of notice from any applicable Law or Order. The Seller shall not settle, compromise, discharge or otherwise admit to any liability for any claim or demand relating to any Action that relates to an Excluded Business without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld or delayed), unless such settlement fully and finally releases the Operating Company and any other related Indemnified Party from all claims and involves only the payment of money by the Seller. Without limiting the foregoing, from and after the Closing, with respect to do soany Third Party Claim or any Action relating to any Excluded Business, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriateshall, and unless shall cause its Affiliates to, at the Indemnifying Party’s expense (i) furnish to the Indemnifying Party such information as the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent reasonably request and (ii) make available to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse their employees whose assistance, testimony or presence is reasonably requested by the Indemnified Indemnifying Party for to assist the amount Indemnifying Party in evaluating, defending or prosecuting any such Claims, Litigation or Liability, including the presence and testimony of such settlement persons as witnesses in hearings or trials for such purposes. With respect to any Action relating to any Excluded Business, the Purchaser and for all damages incurred by its Affiliates hereby acknowledge and agree that from and after the Closing, subject to the terms hereof, the Seller shall have the right to continue prosecuting and defending such Action that relates to any Excluded Business in the name of the Operating Company and the parties shall cooperate with each other to place the Seller as the real party in interest in such Action that relates to an Excluded Business. Without limiting the rights of the Purchaser to be indemnified in connection with such Action, any claims or counterclaims of the Indemnified Party in connection with any Action that relates to an Excluded Business shall be for the defense against or settlement of such claim or litigation.
D. The benefit of, and controlled by, the Indemnifying Party shall promptly reimburse Party, and the Indemnified Party for shall turn over and make available to the amount of Indemnifying Party any judgment rendered with proceeds, settlement payments or other amounts recovered in connection therewith. With respect to any claim Third Party Claim or litigation by a third party in Action that relates to an Excluded Business, the Purchaser shall cause the Indemnified Parties (including the Operating Company) to act within the reasonable direction of the Indemnifying Party and to execute and deliver all such litigation agreements, filings, pleadings, affidavits, instruments and for other documents and take and do all damage incurred such other actions and things as may be reasonably requested by the Indemnified Indemnifying Party in connection with the defense against such claim or litigationorder to vest, whether or not resulting fromperfect, arising out ofconfirm, or incurred with respect tomaintain, the act of a third party.
E. Anything in preserve, protect and enforce its rights under this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property13. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying they have a common interest in defending against any Third Party fails Claims or Action that relates to promptly reimburse the Indemnified Party an Excluded Business and further agree that communications between and among attorneys for the amount such parties in furtherance of any valid indemnification claim hereunder, the Indemnifying Party such common interest shall be entitled subject to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumjoint defense privilege.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense Upon becoming aware of any claim for indemnification hereunder (whether as a result of any Action by any third party in respect of which Seller is responsible indemnity may be sought hereunder (a “Third Party Claim”) or in connection with respect any Losses which the indemnified party (the “Indemnified Party”) deems to any lots, land, rights to purchase lots or land, project or subdivision be within the Owned Real Property. Notwithstanding the foregoingambit of this Article VI or otherwise), the right Indemnified Party shall promptly give, in accordance with the terms of Section 8.3, notice of such claim (a “Claim Notice”) to indemnification hereunder the indemnifying party (the “Indemnifying Party”), providing reasonable detail, to the extent known by the Indemnified Party, of the basis for such claim and, to the extent practicable, an estimate of the amount of the Losses arising out of or relating to such claim; provided, however, that the failure to give a Claim Notice shall not be affected relieve the Indemnifying Party of its indemnification obligations hereunder, except and only to the extent that the Indemnifying Party forfeits rights or defenses by any reason of such failure of an Indemnified Party to give or is otherwise materially prejudiced by such notice, or delay by an Indemnified Party in giving such notice, unless, failure (and then only to the extent that, of such prejudice). If the rights Indemnified Party and remedies of the Indemnifying Party shall have been prejudiced as agree in writing to the validity of a result claim set forth in a Claim Notice and the amount of the failure to giveLosses associated therewith, or delay in giving, such notice. Failure by an if the Indemnifying Party to does not notify an the Indemnified Party of its election objection to defend any the validity of a claim set forth in a Claim Notice or the amount of Losses associated therewith as set forth in such claim or action by a third party Claim Notice within 10 thirty (30) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by Indemnified Party’s delivery of such Claim Notice, then the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense validity of such claim or litigationand the amount of such Losses will be deemed final and undisputed, and, no later than five (5) Business Days thereafter, subject to Section 6.6, Section 6.7 and the other provisions of this Article VI, the Indemnifying Party shall take all steps necessary pay to the Indemnified Party, by wire transfer of immediately available funds in accordance with a certificate executed by the defense Indemnified Party and delivered to the Indemnifying Party, certifying the wire instructions for the account to which such payment should be made, the amount of such Losses. If the Indemnifying Party notifies the Indemnified Party of its objection to the validity of a claim set forth in a Claim Notice or settlement the amount of Losses associated therewith as set forth in such Claim Notice within thirty (30) days after the Indemnified Party’s delivery of such Claim Notice and the Indemnified Party and the Indemnifying Party are not able to agree in writing to the validity of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party Losses, either party may bring an Action to resolve such dispute in connection accordance with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense 8.14. A “Final Determination” of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In additiondeemed to have been made if, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreementin each case, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer terms and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E limitations of this Agreement against any amounts payable under Article VI (i) the Master Agreement, the Option Agreement (including but not limited to the Holdback AmountIndemnified Party(ies) or any of the Transaction Documents.
G. The parties agree that if and the Indemnifying Party fails Party(ies) agree in writing as to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claimclaim to which the Indemnified Party(ies) is entitled, or (ii) a final Order of an arbitrator or court of competent jurisdiction (the time for appeal having expired and no appeal having been taken) is issued or entered into specifying the amount of such claim to which interest shall accrue at a rate of [ * ] per annumthe Indemnified Party(ies) is entitled.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (NRX Pharmaceuticals, Inc.)
Procedure for Indemnification. A. The party All claims for indemnification under this Article V shall be asserted and resolved as follows:
(a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an Indemnifying Party may be liable to an Indemnified Party hereunder is entitled asserted against or sought to be indemnified hereunder collected by a third party (an "Asserted Liability"), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability, specifying the nature of such Asserted Liability and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the "INDEMNIFIED PARTYClaim Notice") shall promptly give notice hereunder to ); provided that no delay on the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because part of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving any such notice, unless, Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder unless (and then only solely to the extent that) the Indemnifying Party is materially prejudiced by such delay. The Indemnifying Party shall have twenty (20) days (or less if the nature of the Asserted Liability requires) from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party whether or not the Indemnifying Party desires, at the rights Indemnifying Party's sole cost and remedies expense and by counsel of its own choosing, which shall be reasonably satisfactory to the Indemnified Party, to defend against such Asserted Liability; provided that if, under applicable standards of professional conduct a conflict on any significant issue between the Indemnifying Party and any Indemnified Party exists in respect of such Asserted Liability, then the Indemnifying Party shall have been prejudiced as a result reimburse the Indemnified Party for the reasonable fees and expenses of one additional counsel to be retained in order to resolve such conflict, promptly upon presentation by the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election invoices or other documentation evidencing such amounts to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. reimbursed. If the Indemnifying Party assumes the defense of undertakes to defend against such claim or litigationAsserted Liability, the Indemnifying Party shall take all steps necessary in control the investigation, defense or and settlement thereof; provided that (i) the Indemnifying Party shall use its reasonable efforts to defend and protect the interests of such claim or litigation, and will hold the Indemnified Party harmless from and against with respect to such Asserted Liability, (ii) the Indemnified Party, prior to or during the period in which the Indemnifying Party assumes control of such matter, may take such reasonable actions as the Indemnified Party deems necessary to preserve any and all damages caused by or arising out rights with respect to such matter, without such actions being construed as a waiver of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnified Party's rights to defense and indemnification pursuant to this Agreement, and (iii) the Indemnifying Party shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified Party, or enter into consent to any settlement which (except A) imposes any Liabilities on the Indemnified Party (other than those Liabilities which the Indemnifying Party agrees to promptly pay or discharge), and (B) with the written consent respect to any non-monetary provision of such settlement, would be likely, in the Indemnified Party) which does not include as 's reasonable judgment, to have an unconditional term thereof adverse effect on the giving by business operations, assets, properties or prospects of Parent, the claimant Company or the plaintiff to Retained Business (in the case of a Parent Indemnified Party), A&S or the A&S Business (in the case of an A&S Indemnified Party), or such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party of a release from all liability shall have the right to control, pay or settle any Asserted Liability which the Indemnifying Party shall have undertaken to defend so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall cooperate fully with the Indemnifying Party and its counsel in respect of the investigation, defense and settlement thereof. If the Indemnified Party desires to participate in any such claim or litigation.
C. defense it may do so at its sole cost and expense. If the Indemnifying Party does not assume undertake within the Notice Period to defend against such Asserted Liability, then the Indemnifying Party shall have the right to participate in any such defense at its sole cost and expense, but the Indemnified Party shall control the investigation, defense and settlement thereof (provided that the Indemnified Party may not settle any such Asserted Liability without obtaining the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld by the Indemnifying Party; provided that in the event that the Indemnifying Party is in material breach at such time of the provisions of this Section 5.4, then the Indemnified Party shall not be obligated to obtain such prior written consent of the Indemnifying Party) at the reasonable cost and expense of the Indemnifying Party (which shall be paid by the Indemnifying Party promptly upon presentation by the Indemnified Party of invoices or other documentation evidencing the amounts to be indemnified). The Indemnified Party and the Indemnifying Party agree to make available to each other, their counsel and other representatives, all information and documents available to them which relate to such claim or demand (subject to the confidentiality provisions of Section 7.5 hereof); provided that no party hereto shall be obligated to disclose any information which would result in the waiver of any attorney-client, attorney work product or other similar privileges, if the disclosure of such information would be materially prejudicial to such disclosing party. The Indemnified Party and the Indemnifying Party and the Company and its employees also agree to render to each other such assistance and cooperation as may reasonably be required to ensure the proper and adequate defense of any such claim or demand.
(b) In the event that an 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 be collected from it by a third party or litigation after receipt of notice from the Indemnified Party to do soparty, the Indemnified Party may defend against shall send a Claim Notice with respect to such claim or litigation in such manner as it deems appropriate, and unless to the Indemnifying Party. The Indemnifying Party shall deposit with have twenty (20) days from the date such Claim Notice is delivered during which to notify the Indemnified Party a sum equivalent in writing of any good faith objections it has to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate Claim Notice or claims for indemnification, setting forth in reasonable detail each of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and Indemnifying Party's objections thereto. If the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount does not deliver such written notice of objection within such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set20-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderday period, the Indemnifying Party shall be entitled deemed to interest on have accepted responsibility for the amount prompt payment of the Indemnified Party's claims for indemnification, and shall have no further right to contest the validity of such claimindemnification claims. If the Indemnifying Party does deliver such written notice of objection within such 20-day period, the Indemnifying Party and the Indemnified Party shall attempt in good faith to resolve any such dispute within thirty (30) days of the delivery by the Indemnifying Party of such written notice of objection. If the Indemnifying Party and the Indemnified Party are unable to resolve any such dispute within such 30-day period, then either the Indemnifying Party or the Indemnified Party shall be free to pursue any remedies which interest shall accrue at a rate of [ * ] per annummay be available to such party under applicable Law.
Appears in 1 contract
Sources: Transition Agreement (Pentair Inc)
Procedure for Indemnification. A. The party (a) Upon becoming aware of a claim for any Losses for which a Person is entitled to be indemnified hereunder indemnity hereunder, the Person seeking indemnification under this Article VIII (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give prompt written notice hereunder of such claim to the party required to indemnify from whom indemnification is sought (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written ); provided, however, that no delay in giving notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity hereunder shall arise from the claim of a third party, shall permit relieve the Indemnifying Party from its obligations hereunder, except and to the extent either (i) that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Indemnified Party's failure to give such notice in a timely manner, or (ii) such notice is delivered after expiration of an applicable survival period in Section 8.1.
(b) Within thirty (30) calendar days after such notice, the Indemnifying Party may deliver to the Indemnified Party its written acknowledgment that the Indemnified Party is entitled to indemnification pursuant to this Article VIII for Losses arising out of such claim, suit or action, together with evidence reasonably satisfactory to the Indemnified Party that the Indemnifying Party has and will have the financial capability to discharge any liability arising from such claim, suit or action. Upon receipt by the Indemnified Party of such acknowledgment and evidence, the Indemnifying Party shall, with counsel reasonably satisfactory to the Indemnified Party, assume the defense of any such claim suit or action initiated by a third party (a "Third Party Claim") including its compromise and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unlesssettlement, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice pay all costs and expenses thereof shall have been given to the Indemnifying Party and shall be deemed a waiver by fully responsible for the Indemnifying Party of its right to defend such claim or action.
B. outcome thereof. If the Indemnifying Party so assumes the defense of such claim or litigationThird Party Claim, the Indemnifying Party shall take all steps necessary in the defense (i) no compromise or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved thereof may be effected by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement 's consent (except with which shall not be unreasonably withheld) unless the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving sole relief is monetary damages that are paid in full by the claimant or the plaintiff to Indemnifying Party and (ii) the Indemnified Party of a release from all shall have no liability in with respect of such claim to any compromise or litigation.
C. If settlement thereof effected without its consent (which shall not be unreasonably withheld). In the event that the Indemnifying Party does not provide such acknowledgment and evidence, the Indemnified Party shall be entitled to assume the defense of any such claim by a third party or litigation after receipt Third Party Claim at the sole cost and expense of notice the Indemnifying Party, with counsel reasonably satisfactory to the Indemnifying Party; and in such event, all Losses resulting from the Indemnified defense settlement of such Third Party Claim shall be subject to do sothe indemnification provisions of this Article VIII. In such case, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless will give the Indemnifying Party shall deposit with not less than twenty (20) calendar days' written notice of any proposed settlement or compromise of any Third Party Claim. Any settlement or compromise made or caused to be made by the Indemnified Party a sum equivalent of any such Third Party Claim of the kind referred to above, shall be subject to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate prior written consent of the costs of defending the sameIndemnifying Party, the Indemnified Party may settle which shall not be unreasonably withheld, and thereupon such claim settlement or litigation on such terms as it may deem appropriate and compromise shall be binding upon the Indemnifying Party shall promptly reimburse in the Indemnified Party for same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise.
(c) In case of any such Third Party Claim, the Indemnified Party will cooperate reasonably with the Indemnifying Party, cooperate reasonably in the defense thereof, including affording to the Indemnifying Party the right of access, during normal business hours, to the personnel of the Indemnified Party and all pertinent books and records for purposes of inspection and making copies, but all damages reasonable out-of-pocket expenses incurred by the Indemnified Party in connection with the foregoing shall be reimbursed by the Indemnifying Party. If the Indemnifying Party assumes the defense against or settlement thereof in accordance with Section 8.4(b), the Indemnified Party shall have the right to observe and consult in the defense or settlement of such claim or litigation.
D. The a Third Party Claim and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party shall promptly reimburse Party. If the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with conducts the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if settlement thereof after the Indemnifying Party fails has declined to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderdo so in accordance with Section 8.4(b), the Indemnifying Party shall be entitled have the right to interest on observe and consult in the amount defense of such claima Third Party Claim and to employ counsel, which interest shall accrue at a rate of [ * ] per annumits own expense, separate from the counsel employed by the Indemnified Party.
Appears in 1 contract
Procedure for Indemnification. A. The (a) Within 30 days after the incurrence of any losses by any Person entitled to indemnification pursuant to Section 7.4 hereof (an “Indemnified Party”) which might give rise to indemnification hereunder, the Indemnified Party shall deliver to the party from which indemnification is sought (the “Indemnifying Party”) and, if applicable, the Escrow Agent a certificate (the “Certificate”), which Certificate shall:
(i) state that the Indemnified Party has paid or properly accrued losses or anticipates that it will incur liability for losses for which such Indemnified Party is entitled to be indemnified hereunder indemnification pursuant to this Agreement; and
(ii) specify in reasonable detail each individual item of loss included in the "INDEMNIFIED PARTY") shall promptly give notice hereunder to amount so stated, the party required to indemnify (date such item was paid or properly accrued, the "INDEMNIFYING PARTY") after obtaining written notice basis for any anticipated liability and the nature of any the misrepresentation, breach of warranty, breach of covenant or claim as to which recovery may be sought against each such item is related and the indemnifying party because computation of the indemnity in Section 1 and Section 2 hereof and, if amount to which such indemnity shall arise from Indemnified Party claims to be entitled hereunder.
(b) In the claim of a third party, shall permit event that the Indemnifying Party shall object to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party in respect of any claim or claims specified in any Certificate, the Indemnifying Party shall, within 10 days after receipt by the Indemnifying Party of such Certificate, deliver to give such notice, or delay by an the Indemnified Party a notice to such effect and the Indemnifying Party and the Indemnified Party shall, within the 30 day period beginning on the date of receipt by the Indemnified Party of such objection, attempt in giving such notice, unless, and then only good faith to the extent that, agree upon the rights and remedies of the respective parties with respect to each of such Claims to which the Indemnifying Party shall have been prejudiced as a result of so objected. If the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to and the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right succeed in reaching agreement on their respective rights with respect to defend such claim or action.
B. If the Indemnifying Party assumes the defense any of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soClaims, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then the Indemnified Party and the Indemnifying Party shall submit such dispute for arbitration in accordance with Section 7.8. The party which receives a final judgment in such dispute shall be indemnified and held harmless for all reasonable attorney and consultant’s fees or expenses by the other party.
(c) Claims for losses specified in any Certificate to which an Indemnifying Party shall not object in writing within 10 days of receipt of such Certificate, Claims for losses the validity and amount of which have been the subject of arbitration as described in Section 7.5(b) and Claims for losses the validity and amount of which shall have been the subject of a final arbitration, or shall have been settled with the consent of the Indemnifying Party, are hereinafter referred to, collectively, as “Agreed Claims”. Within 10 days of the determination of the amount of any Agreed Claims, the Indemnifying Party shall pay to the Indemnified Party (except in the case where a payment has been already effected pursuant to the Escrow Agreement but only to the extent of such settlement and for all damages incurred payment) an amount equal to the Agreed Claim by wire transfer in immediately available funds to the bank account or accounts designated by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect a notice to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails not less than two Business Days prior to promptly reimburse such payment; provided that (i) any Agreed Claim shall be satisfied first by withholding and setting off against the Indemnified Escrow Amount and the Earn-Out Amount (to the extent realized but unpaid), on a pro-rata basis, and thereafter by recourse directly to the Vendor; and (ii) the Vendor may satisfy any portion of the Agreed Claim by returning for cancellation such number of Marble Shares valued at the issue price therefor.
(d) The Vendor shall have the right and option to satisfy any Claim against it by an Indemnifying Party by payment in cash or returning that portion of the Marble Shares for cancellation at an ascribed value equal to the VWAP of the Marble Shares for the amount five consecutive trading days ending three trading days preceding date of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumAgreed Claims.
Appears in 1 contract
Sources: Asset Purchase Agreement
Procedure for Indemnification. A. The (a) Promptly after the receipt by a party which is entitled to be indemnified hereunder hereto of notice of any claim or the commencement of any action or proceeding, such party (the "INDEMNIFIED PARTY") shall promptly will, if a claim with respect thereto is to be made against the other party pursuant to SECTION 8.1 or 8.2, give notice hereunder to the indemnifying party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any such claim as to which recovery may be sought against or the indemnifying party because commencement of the indemnity in Section 1 such action or proceeding and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and or any litigation resulting from such claim, provided that, Buyer ; PROVIDED that no failure or Meritage may, delay in their discretion, undertake, at Seller's cost and expense, the defense delivery of any claim for which Seller is responsible hereunder with respect to any lotsnotice shall impair the rights of the Indemnified Party, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only except to the extent that, the rights and remedies of the Indemnifying Party shall have been is prejudiced as a result of the failure to give, or delay in giving, such noticethereby. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of any such claim or litigationlitigation resulting therefrom, the obligations of the Indemnifying Party as to such claim shall take be limited to taking all steps necessary in the defense or settlement of such claim or litigationlitigation resulting therefrom and to the extent required by SECTION 8.1 or 8.2, and will hold subject to its terms, conditions and limitations, to holding the Indemnified Party harmless from and against any and all damages Losses and Expenses caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation resulting therefrom. The Indemnified Party may participate, at its expense, in the defense of such claim or litigation provided that the attorney selected by the Indemnifying Party to represent the Indemnifying Party shall direct and control the defense of such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) judgment, or enter into any settlement, except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigationlitigation or which provides for a settlement payment in excess of the remaining amount held pursuant to the Indemnification Escrow Agreement.
C. (b) If the Indemnifying Party does shall not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soresulting therefrom, the Indemnified Party may defend against such claim or litigation in such manner as it deems may deem appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the . The Indemnified Party may not settle such claim or litigation on such terms as to which it may deem appropriate and seeks indemnification hereunder without the written consent of the Indemnifying Party (which consent shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigationnot be unreasonably withheld).
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The (i) For any party which is seeking indemnification from the other under this Section 35 (such party seeking indemnification being hereinafter referred to as the "Indemnified Party") to be entitled to be indemnified hereunder any such indemnification in respect of, arising out of or involving a legal proceeding, counterclaim or cross claim instituted by any third party against the Indemnified Party (a "Third Party Claim"), the Indemnified Party shall give the party from whom indemnification is sought (such party from whom indemnification is sought being hereinafter referred to as the "INDEMNIFIED PARTYIndemnifying Party") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining ), written notice of any claim as to which recovery may be sought against the indemnifying party because such Third Party Claim within ten (10) Business Days after written notice of the indemnity in Section 1 and Section 2 hereof and, if commencement of such indemnity shall arise from proceedings. Failure by the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party notice shall not result in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Indemnified Party of its any right to defend be indemnified with respect to such claim or action.
B. If Legal Proceeding so long as the Indemnifying Party assumes has not been prejudiced by the defense of such claim or litigationfailure to give timely notice.
(ii) If the Indemnified Party is entitled to indemnification pursuant to Section 35(d)(i), the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold defend the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by such Third Party Claim in such manner as the Indemnifying Party or any judgment in connection with such claim or litigation. The reasonably deems appropriate, the Indemnifying Party shall not, in pay the defense costs of such claim or any litigation resulting therefromdefense, consent to entry including reasonable attorneys' fees and expenses and witness fees, and the Indemnifying Party may settle such Third Party Claim on such terms as it deems appropriate without the necessity of any judgment (other than a judgment of dismissal on obtaining the merits without costs) except with the written consent of the Indemnified Party; provided, or enter into however, that any such settlement (except with shall include the written consent complete release of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect , and if no settlement of such claim or litigation.
C. If the Indemnifying Third Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soClaim is made, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against pay or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by Third Party Claim.
(iii) If the Indemnifying Party is unable to defend the Indemnified Party in connection with against a Third Party claim due to a conflict, of if the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect toIndemnified Party chooses to do so, the act Indemnified Party may secure its own legal counsel to defend it against the Third Party Claim at the sole cost and expense of a third partythe Indemnified Party.
E. Anything (iv) Notwithstanding any provision to the contrary in this Section 3 to the contrary notwithstanding35, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. before Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest indemnification with respect to any claim by Buyer of Seller's breach of environmental representations set forth in Section 9.11 hereof, Buyer must establish that Seller, its agents or employees, or tenants who leased and occupied the Real Property during any period of Seller's ownership of the Real Property, such tenants' agents or employees or any other party or entity, caused there to exist Environmental Matters on the amount of such claimReal Property, which interest shall accrue at a rate of [ * ] per annumEnvironmental Matters have not been disclosed to Buyer by Seller or discovered by Buyer through Buyer's due diligence performed prior to the Closing Date.
Appears in 1 contract
Procedure for Indemnification. A. (a) The party which seeking indemnification pursuant to Sections 1 or 2 is entitled referred to be indemnified hereunder (as the "INDEMNIFIED PARTY") shall promptly give notice hereunder to " and the party required from whom indemnification is sought under Sections 1 or 2 is referred to indemnify (as the "INDEMNIFYING PARTY."
(b) after obtaining The Indemnified Party shall give prompt written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder indemnification under Sections 1 or 2 above relating to a claim or demand of a third party with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertywhich it is seeking indemnification hereunder. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any The failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party prompt notice shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by not relieve the Indemnifying Party of its right indemnity obligations hereunder with respect thereto, except to defend such claim or action.
B. If the extent that the Indemnifying Party assumes the defense of is materially prejudiced by such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationfailure. The Indemnifying Party shall nothave the right to defend and to direct the defense against any such claim or demand (other than one made pursuant to Section 2(d)), in its name or in the name of the Indemnified Party, as the case may be, at the expense of the Indemnifying Party, and with the counsel selected by the Indemnifying Party and approved by the Indemnified Party (such approval not to be unreasonably withheld), PROVIDED that the Indemnifying Party may not settle or compromise any such claim or demand without the consent of the Indemnified Party (which consent may not be unreasonably withheld) if injunctive or other equitable relief would be imposed against the Indemnified Party as a result thereof. Notwithstanding anything in this Agreement to the contrary, the Indemnified Party shall cooperate with the Indemnifying Party, and keep the Indemnifying Party fully informed in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the demand. The Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If shall have the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party right to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any claim or demand with counsel employed by it at the expense of the Indemnified Party. The Indemnifying Party shall have no indemnification obligations with respect to any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will demand which shall be against future lot takedowns settled by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for without the amount prior written consent of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumParty.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (a) Each Party (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give prompt written notice hereunder to the party required to indemnify other Party (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim as or event known to it which recovery does or may give rise to a claim by the Notifying Party based on the indemnification provisions of this Agreement, stating the nature and basis and said claim or events and the amounts thereof, to the extent known. Such notice shall be sought against the indemnifying party because a condition precedent to any indemnification obligation of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real PropertyNotified Party. Notwithstanding the foregoing, the right failure to indemnification hereunder give reasonably prompt written notice pursuant to this Section 11.6 shall not be affected by any failure defeat a claim made pursuant the indemnification provisions of an Indemnified Party to give such noticethis Agreement, or delay by an Indemnified Party in giving such notice, unless, and then only except to the extent thatthat the Notified Party can establish that it has been harmed by such delay.
(b) In the event of any claim, action, suit or proceeding made or brought against an Indemnified Party, the rights and remedies of Indemnified Party shall give the Indemnifying Party shall have been prejudiced written notice of such claim, action, suit or proceeding as described in Section 11.6(a), with a result copy of the failure to giveclaim, or delay in givingprocess and legal pleadings with respect thereto. After notification, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by may participate in and assume the Indemnifying defense thereof, with counsel reasonably satisfactory to such Indemnified Party at the time of its right to defend such claim or action.
B. assumption. If the Indemnifying Party assumes the defense of such claim the claim, action, suit or litigationproceeding, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from shall nonetheless have the right to employ its own counsel and against any such counsel may participate in such action, but the fees and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense expenses of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on counsel shall be at the merits without costs) except with the written consent expense of the Indemnified Party, when and as incurred, unless (a) the employment of counsel by the Indemnified Party has been authorized by the Indemnifying Party, or enter into any settlement (except with b) the written consent Indemnifying Party shall not in fact have employed counsel to assume the defense of such claim, action, suit or proceeding reasonably satisfactory to the Indemnified Party. If clause (b) of the preceding sentence applies, then counsel for the Indemnified Party shall have the right to direct the defense of such claim, action, suit or proceeding on behalf of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party Parties shall be entitled to interest on the amount keep each other fully informed of such claim, which interest shall accrue action, suit or proceeding at a rate of [ * ] per annumall stages thereof whether or not both Parties are represented by its own counsel.
Appears in 1 contract
Sources: Joint Venture Agreement (International Assets Holding Corp)
Procedure for Indemnification. A. The (a) In the event that any party hereto shall incur (or anticipate that it may incur in the case of third party claims) any damages in respect of which is entitled indemnity may be sought by such person pursuant to be this Section (each, an "Indemnification Matter"), the party indemnified hereunder (the "INDEMNIFIED PARTYIndemnitee") shall promptly give notice hereunder notify the party(s) providing indemnification (collectively, the "Indemnitor") by sending a written Indemnity Notice (as hereinafter defined); and in the case of third party claims, an Indemnity Notice shall be given within 60 days after the discovery by the Indemnitee of the filing or assertion of any claim against the Indemnitee stating the nature and basis of such claim; provided, however, that any delay or failure to notify any Indemnitor of any claim shall not relieve it from any liability, except to the extent that the Indemnitor demonstrates that the defense of such action is materially prejudiced by such delay or failure to notify. Any notice of indemnification hereunder (each, an "Indemnity Notice") will (i) provide (with reasonable specificity) the basis on which indemnification is being asserted, (ii) set forth the amount (or then current estimate thereof) of damages for which indemnification is being asserted, if known, and (iii) in the case of third party required claims, be accompanied by copies of all relevant pleading, demands and other papers served on or delivered to indemnify the Indemnitee.
(b) In the case of third party claims the Indemnitee shall give the Indemnitor a reasonable opportunity (i) to conduct any proceedings or negotiations in connection therewith and necessary or appropriate to defend the Indemnitee (provided such are diligently pursued in a professional manner), (ii) to take all other reasonable steps or proceedings to settle or defend any such claims, provided that the Indemnitor shall not settle any such claim without the prior written consent of the Indemnitee, and (iii) to employ counsel selected by the Indemnitor, who shall be satisfactory to the Indemnitee, to contest any such claim or litigation resulting therefrom in the name of the Indemnitee or otherwise. The Indemnitor shall, within 20 days of receipt of an Indemnity Notice of such claim (the "INDEMNIFYING PARTYIndemnity Notice Period") after obtaining ), notify the Indemnitee in writing of its intention to assume the defense of such claim. If defendants in any action include the Indemnitee and the Indemnitor, and the Indemnitee shall have been advised by its counsel in writing that there are legal defenses available to the Indemnitee which are materially different from or in addition to those available to the Indemnitor, the Indemnitee shall have the right to employ its own counsel in such action, and, in such event, the fees and expenses of such counsel shall be borne by the Indemnitor. If the Indemnitor does not deliver to the Indemnitee within the Indemnity Notice Period written notice of any claim as to which recovery may be sought against that the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to Indemnitor will assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party Indemnitee may defend against any such claim or litigation in such manner as it deems appropriate, may deem appropriate and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party Indemnitee may settle such claim or litigation on such terms as it may deem appropriate appropriate. The costs, fees and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount expenses of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against proceedings, contests or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered lawsuits with respect to any claim or litigation such claims shall be borne by the Indemnitor. Within 10 days after the occurrence of a final determination with respect to a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect toclaim, the act of a third party.
E. Anything in this Section 3 to Indemnitor shall pay the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.Indemnitee
Appears in 1 contract
Sources: Stock Purchase Agreement (Ramsay Youth Services Inc)
Procedure for Indemnification. A. (a) The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 8.3 and Section 2 8.4 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of 112 an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 15 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. (b) If the Indemnifying Party assumes the defense of such claim or litigationlitigation resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim shall take include taking all steps necessary in the defense or settlement of such claim or litigation, litigation and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation. Anything in this Section 8.5 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
C. (c) If the Indemnifying Party does shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the such Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. (d) The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.ARTICLE 9
Appears in 1 contract
Procedure for Indemnification. A. (a) The Spinco Indemnified Parties or the NSU Indemnified Parties (each referred to hereinafter as an "Indemnified Party"), as the case may be, shall promptly give notice to the indemnifying party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice knowledge of any claim as to which recovery may be sought claim, demand or request for payment against the indemnifying party because of the indemnity in Section 1 any Indemnified Party for any Liabilities indemnifiable hereunder and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to pay or assume the defense of any such claim Liability, and any litigation resulting arising from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real PropertyLiability. Notwithstanding the foregoingforegoing notice requirement, the right to indemnification hereunder shall not be affected by any the failure of an Indemnified Party the party seeking indemnification to give such notice, notice or any delay by an Indemnified Party such party in giving such notice, notice unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or the delay in giving, such notice. Failure The failure by an Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party Liability within 10 ten (10) days after notice thereof shall have been given to the Indemnifying Party Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or actionLiability.
B. (b) If the an Indemnifying Party assumes the defense of any Liability and any litigation that results from such claim or litigationLiability, then the obligations of the Indemnifying Party as to such litigation shall take include employing counsel reasonably satisfactory to the Indemnified Party, taking all steps necessary in the defense or settlement of such claim or litigation, litigation and will hold holding the Indemnified Party harmless from and against any and all damages claims and expenses caused by or arising out of any settlement approved by the Indemnifying Indemnified Party or any judgment in connection with such claim or litigation. The Without the prior written consent of the Indemnified Party, the Indemnifying Party Parties shall not, in the defense of any such claim or any litigation resulting therefromlitigation, consent to the entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which that does not include as an unconditional term thereof thereof, the giving by the claimant or the plaintiff to the Indemnified Party of a release full release, in form reasonably satisfactory to the Indemnified Party, from all liability in respect of such claim litigation. The Indemnified Party shall be entitled to participate in the defense of any litigation at its own expense. If the defendants in any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or litigationadditional to those available to the Indemnifying Party, the Indemnified Party shall have the right, at the expense of the Indemnifying Party, to select separate counsel reasonably satisfactory to the Indemnifying Party to assume such additional legal defenses, and to otherwise participate in the defense of such action on behalf of the Indemnified Party.
C. (c) If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation Liability within ten (10) days after receipt of notice from the Indemnified Party gives notice thereof to do sothe Indemnifying Party, then the Indemnified Party may defend against such claim or Liability and any litigation with respect thereto, in such manner as it deems appropriate, appropriate and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle any such claim or litigation on such terms as it may deem deems appropriate and the Indemnifying Party shall promptly shall, in accordance with the provisions of Sections 5.01 or 5.02, as the case may be, reimburse the Indemnified Party for the amount of such settlement and for all damages losses and expenses, including attorney's fees, incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigationLiability.
D. (d) The Indemnified Party and the Indemnifying Party agree to cooperate with each other in resolving or attempting to resolve any claim as to which indemnification is sought under this Agreement and will permit the other party access to all books and records which might be useful for such purpose during normal business hours and at the place where such books and records are normally kept. The Indemnified Party and the Indemnifying Party further agree to make available, at reasonable times, such of their respective employees, officers and agents who may have knowledge of matters relating to any claim arising out of this agreement for the purpose of providing testimony or assisting in the preparation or prosecution of a defense to any claim by a third party as to which indemnification is sought under this Agreement.
(e) Any dispute arising between the parties hereto as to the obligations under this Article V shall be resolved pursuant to Article X hereto. If there is no dispute with respect to any payment under this Article V from an Indemnifying party to an Indemnified Party, then within ten (10) days after written demand for such payment by the Indemnified Party, the Indemnifying Party shall promptly reimburse pay to the Indemnified Party for the amount of any judgment rendered loss, expense, damage or other payment suffered, incurred or made by the Indemnified Party against which the Indemnified Party is indemnified by the Indemnifying Party under this Article V. In the event the Indemnifying Party fails to pay such undisputed amount within said ten (10) day period, or it is determined pursuant to the provisions of Article X that the Indemnifying Party is obligated to pay an amount which it had previously disputed, the Indemnified Party shall be entitled to collect the following from the Indemnifying Party: (i) interest from the date of the Indemnified Party's demand for payment on the amount owing to the Indemnified Party at the rate equal to the reference rate as publicly announced from time to time by First Bank National Association plus two (2) percentage points, compounded monthly, until the full amount owing, including any interest, has been paid in full with respect to any claim or litigation by a third party in such litigation all payments being applied first against accrued and for unpaid interest, and (ii) all damage costs and expenses, including reasonable attorneys fees, incurred by the Indemnified Party in connection with collecting the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if owing from the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.under this Article V.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (North Star Universal Inc)
Procedure for Indemnification. A. The (a) In the case of any claim asserted by a third party against an Indemnified Party for which indemnification is entitled to required under this Participation Agreement, notice shall be indemnified hereunder given (the "INDEMNIFIED PARTY"“Claim Notice”) shall promptly give notice hereunder by the Indemnified Party to the party Party required to indemnify provide such indemnification (the "INDEMNIFYING PARTY"“Indemnifying Party”) promptly after obtaining written notice such Indemnified Party has actual knowledge of any claim as to which recovery indemnity may be sought against sought, and the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, Indemnified Party shall permit the Indemnifying Party (at the expense of such Indemnifying Party) to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent provided that (i) counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to entry the Indemnified Party, and the Indemnified Party may participate in such defense at such Indemnified Party’s expense, and (ii) the failure of any judgment Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligation under this Participation Agreement except to the extent that such failure results in a lack of actual notice to the Indemnifying Party and such Indemnifying Party is materially prejudiced as a result of such failure to give notice. The Indemnifying Party shall have thirty (other than a judgment 30) days from receipt of dismissal on the merits Claim Notice (the “Notice Period”) to notify the Indemnified Party whether or not it elects to assume the defense of the Indemnified Party against such claim or demand. If the Sky Parties collectively act as the Indemnifying Party, no action shall be taken by them as “Indemnifying Party” without coststhe agreement of all Sky Parties.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it elects to defend the Indemnified Party against such claim or demand, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings, provided that, except with the prior written consent of the Indemnified Party, no Indemnifying Party, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement (except with the written consent of that provides for injunctive or other nonmonetary relief affecting the Indemnified Party) which Party or that does not include as an unconditional term thereof the giving by the each claimant or the plaintiff to the such Indemnified Party of a release from all liability with respect to such claim or litigation. In the event that the Indemnified Party shall (i) in good faith determine that (x) the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the Indemnifying Party might be expected to affect adversely the Indemnified Party’s Tax liability or (y) that the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect of such claim or litigation.
C. If any litigation relating thereto or (ii) in the case of any Globo Indemnitee, notify the Indemnifying Party in writing that there is a reasonable probability that such claim or demand is reasonably likely to adversely affect the rights or ability of Globo or any Affiliate thereof to perform under the Agency Agreement or any related agreement, the Indemnified Party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to any such claim at the sole cost of the Indemnifying Party, provided that if the Indemnified Party does so take over and assume control, the Indemnified Party shall not consent to entry of any judgment or settle such claim or litigation (except, in any case described by clause (ii) above, as may relate to Globo’s rights and obligations under the Agency Agreement or any related agreement) without the written consent of the Indemnifying Party, such consent not to be unreasonably withheld. “Globo Indemnitee” as used herein means Globo, any of its Affiliates and each officer, director, employee, representative and successor and permitted assign of any of the foregoing. In the event that the Indemnifying Party does not assume accept the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do somatter for which indemnification is required, the Indemnified Party may shall have the full right to defend against any such claim or litigation in such manner as it deems appropriatedemand, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent be entitled to the total amount demanded settle or agree to pay in full such claim or litigation plus demand at the Indemnified Party's estimate expense of the costs of defending the sameIndemnifying Party. In any event, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party Parties shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate cooperate in the defense of any such claim or litigation.
F. Buyer litigation subject to this Article 9 and Meritage may at their option set-off any the records of Seller's indemnification obligations arising each shall be available to the other with respect to such defense. Each Indemnifying Party’s obligation under this Agreement against Article 9 shall not affect the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns other Parties’ right to seek any other remedy upon a default by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumunder this Agreement.
Appears in 1 contract
Procedure for Indemnification. A. The Each party which is entitled to be indemnified hereunder indemnification under paragraph (a) or (b) of this Section 10 (the "INDEMNIFIED PARTYIndemnified Party") shall shall, promptly give after receipt of notice hereunder to of any claim or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought, notify the party required to indemnify provide indemnification (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because in writing of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from claim or the claim of a third party, shall permit commencement thereof; provided that the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of notify the Indemnifying Party shall have been prejudiced as a result of not relieve the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party from any liability which it may have to notify an Indemnified Party pursuant to the provisions of its election this Section 10, unless the Indemnifying Party was materially prejudiced by such failure, and in no event shall such failure relieve the Indemnifying Party from any other liability which it may have to defend such Indemnified Party. If any such claim or action by a third party within 10 days after notice thereof shall have been given to be brought against an Indemnified Party, it shall notify the Indemnifying Party shall be deemed a waiver by thereof and provide the Indemnifying Party of its right with the opportunity to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, participate in the defense of such claim or any litigation resulting therefromaction with counsel of the Indemnifying Party's choice and at the Indemnifying Party's cost and expense and shall not, consent to entry of any judgment (other than a judgment of dismissal on without the merits without costs) except with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, settle any claim or action, so long as the Indemnifying Party shall have unconditionally acknowledged its obligation to indemnify hereunder with respect to such claim or action. To the extent reasonably requested by the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit reasonably cooperate with the Indemnified Party a sum equivalent and its representatives and counsel in any dispute or defense related to the total amount demanded in such any claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. action. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect pay to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with cash the defense against amount to which such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, Indemnified Party may become entitled by reason of the act provisions of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation10.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Registration Rights Agreement (Rush Enterprises Inc \Tx\)
Procedure for Indemnification. A. The Each party which is entitled to be indemnified hereunder under paragraph (a) or (b) of this Section 8 (the "INDEMNIFIED PARTY") shall shall, promptly give after receipt of notice hereunder to of any claim or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought, notify the party required to indemnify provide indemnification (the "INDEMNIFYING PARTY") after obtaining written notice in writing of the claim or the commencement thereof; provided that the failure of the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any claim as liability which it may have to which recovery may be sought against the indemnifying party because an Indemnified Party on account of the indemnity agreement contained in paragraph (a) or (b) of this Section 1 8, unless the Indemnifying Party was materially prejudiced by such failure, and Section 2 hereof in no event shall relieve the Indemnifying Party from any other liability which it may have to such Indemnified Party. If any such claim or action shall be brought against an Indemnified Party, it shall notify the Indemnifying Party thereof and the Indemnifying Party shall be entitled to participate therein, and, if such indemnity shall arise from to the claim of a third extent that it wishes, jointly with any other similarly notified indemnifying party, shall permit to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes assume the defense of such claim or litigationaction, the Indemnifying Party shall take all steps necessary in not be liable (except to the defense or settlement of such claim or litigation, and will hold extent the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall notproviso to this sentence is applicable, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costswhich event it will be so liable) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim under this Section 8 for any legal or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages other expenses subsequently incurred by the Indemnified Party in connection with the defense against or settlement thereof other than reasonable costs of such claim or litigation.
D. The Indemnifying investigation; provided that each Indemnified Party shall promptly reimburse have the Indemnified Party for the amount of any judgment rendered with respect right to any claim or litigation by a third party employ separate counsel to represent it and assume its defense (in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderwhich case, the Indemnifying Party shall not represent it) if (i) upon the advice of counsel, the representation of both parties by the same counsel would be entitled inappropriate due to interest on actual or potential differing interests between them, or (ii) in the amount event the Indemnifying Party has not assumed the defense thereof within ten (10) days of such claim, which interest shall accrue at a rate receipt of [ * ] per annum.notice of such
Appears in 1 contract
Procedure for Indemnification. A. The Each party which is entitled to be indemnified hereunder indemnification under paragraph (a) or (b) of this SECTION 7 (the "INDEMNIFIED PARTY") shall shall, promptly give notice hereunder to after such Indemnified Party has knowledge of any claim or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought, notify the party required to indemnify provide indemnification (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because in writing of the indemnity claim or the commencement thereof; provided that the failure of the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to an Indemnified Party pursuant to the provisions of this SECTION 7, unless the Indemnifying Party was materially prejudiced by such failure, and in Section 1 no event shall such failure relieve the Indemnifying Party from any other liability which it may have to such Indemnified Party. If any such claim or action shall be brought against an Indemnified Party, it shall notify the Indemnifying Party thereof and Section 2 hereof the Indemnifying Party shall be entitled to participate therein, and, if such indemnity shall arise to the extent that it wishes, jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes assume the defense of such claim or litigationaction, the Indemnifying Party shall take all steps necessary not be liable (except to the extent the proviso to this sentence is applicable, in the defense or settlement of such claim or litigation, and which event it will hold be so liable) to the Indemnified Party harmless from under this SECTION 7 for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation prior to assumption; provided that each Indemnified Party shall have the right to employ separate counsel to represent it and against any and all damages caused by or arising out of any settlement approved by assume its defense (in which case, counsel to the Indemnifying Party shall not represent it) if (i) upon the written advice of counsel, the representation of both parties by the same counsel would be inappropriate due to actual or any judgment potential differing interests between them (in connection with which case, if such claim or litigation. The Indemnified Party notifies the Indemnifying Party shall notin writing that it elects to employ separate counsel at the expense of the Indemnifying Party, in the Indemnifying Party will not have the right to assume the defense of such claim or action on behalf of such Indemnified Party), or (ii) in the event the Indemnifying Party has not assumed the defense thereof within thirty (30) days of receipt of notice of such claim or commencement of action, in which case the fees and expenses of one such separate counsel shall be paid by the Indemnifying Party (and, in the event the Holders are an Indemnified Party, the Indemnifying Party shall, in such event, pay for one separate counsel for the Holders). If any litigation resulting therefromIndemnified Party employs such separate counsel it will not enter into any settlement agreement which is not approved by the Indemnifying Party, such approval not to be unreasonably withheld or delayed. If the Indemnifying Party so assumes the defense thereof (and by so assuming shall be solely responsible for liabilities relating to such claim or action, and shall release the Indemnified Party from such liabilities to the extent permitted by law, except to the extent the Indemnified Party is not entitled to be indemnified pursuant to this SECTION 7), it may not agree to any settlement of any such claim or action as the result of which any remedy or relief, other than monetary damages for which the Indemnifying Party shall be responsible hereunder, shall be applied to or against the Indemnified Party, without the prior written consent of the Indemnified Party which shall not be unreasonably withheld or delayed. No Indemnifying Party will consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the such Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If action. In any action hereunder as to which the Indemnifying Party does not assume has assumed the defense of any such claim by a third party or litigation after receipt of notice from thereof with counsel satisfactory to the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation shall continue to be entitled to participate in such manner the defense thereof, with counsel of its own choice, but, except as it deems appropriateset forth above, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent not be obligated hereunder to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the costs thereof. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense against or settlement of such claim or litigationand litigation recurring therefrom.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Registration Rights Agreement (Ramsay Youth Services Inc)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice 14.5.1 Following receipt of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim Notice of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting Claim from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such noticeParty, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result 30 Business Days to make such investigation of the failure Claim as the Indemnifying Party considers necessary or desirable. For the purpose of such investigation, the Indemnified Party shall make available to givethe Indemnifying Party and its authorized representatives the information relied upon by the Indemnified Party to substantiate the Claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of such 30 Business Day period (or any mutually agreed upon extension thereof) to the validity and amount of the Claim, or delay in givingthe Indemnifying Party shall immediately pay to the Indemnified Party the full agreed upon amount of the Claim.
14.5.2 Promptly after receipt by an Indemnified Party of a notice of the commencement of any proceeding against it, such notice. Failure by the Indemnified Party will, if a claim is to be made against an Indemnifying Party hereunder, give notice to the Indemnifying Party of the commencement of such claim. The failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except, if and to the extent that the Indemnifying Party demonstrates that the defence of such action is prejudiced by the Indemnified Party's failure to give such notice.
14.5.3 If any proceeding referred to in Section 14.5.2 above (a "Proceeding") is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of the Proceeding, the Indemnifying Party will be entitled to participate in the Proceeding. Subject to the next following sentence, to the extent that the Indemnifying Party wishes to assume the defence of the Proceeding with counsel satisfactory to the Indemnified Party, acting reasonably, it may do so provided it reimburses the Indemnified Party for all of its out-of-pocket expenses arising prior to or in connection with such assumption. The Indemnifying Party may not assume defence of the Proceeding if the Indemnifying Party is also a party to the Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate. After notice from the Indemnifying Party to the Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to assume the Indemnifying Party shall be deemed a waiver by defence of the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigationProceeding, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of as long as it diligently conducts such claim or any litigation resulting therefromdefence, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff be liable to the Indemnified Party under this Section 14.5.3 for any fees of a release from all liability in other counsel or any other expenses with respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate defence of the costs of defending the sameProceeding, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages in each case subsequently incurred by the Indemnified Party in connection with the defense against defence of the Proceeding, other than reasonable costs of investigation. If the Indemnifying Party assumes the defence of a Proceeding, (i) no compromise or settlement of such claim or litigation.
D. The claims may be made by the Indemnifying Party shall promptly reimburse without the Indemnified Party's consent (which may not be unreasonably withheld) unless (A) there is no finding or admission of any violation of Laws or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and (ii) the Indemnified Party for the amount of any judgment rendered will have no liability with respect to any claim compromise or litigation by a third party settlement of such claims effected without its consent not to be unreasonably withheld. If notice is given to an Indemnifying Party of the commencement of any Proceeding and the Indemnifying Party does not, within ten Business Days after receipt of such notice, give notice to the Indemnified Party of its election to assume the defence of the Proceeding, the Indemnifying Party will not be entitled to assume the defence, unless the Indemnifying Party determines in good faith that the Indemnified Party has failed to vigorously defend itself in such litigation and defence.
14.5.4 Notwithstanding Section 14.5.3, if an Indemnified Party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for all damage which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle the Proceeding. In such case, the Indemnifying Party need not advance the out-of-pocket expenses incurred by the Indemnified Party in connection with such Proceeding and will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
14.5.5 Where the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect todefence of a Proceeding is being undertaken and controlled by the Indemnifying Party, the act of a third party.
E. Anything in this Section 3 Indemnified Party will use all reasonable efforts to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects make available to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails those employees whose assistance, testimony or presence is necessary to promptly reimburse assist the Indemnified Indemnifying Party for the amount of in evaluating and defending any valid indemnification claim hereundersuch claims. However, the Indemnifying Party shall be entitled responsible for the reasonable out of pocket expense associated with any employees made available by the Indemnified Party to interest the Indemnifying Party pursuant to this Section 14.5.5).
14.5.6 With respect to any Proceeding, the Indemnified Party shall make available to the Indemnifying Party or its representatives on a timely basis all documents, records and other materials in the amount possession of the Indemnified Party, at the expense of the Indemnifying Party, reasonably required by the Indemnifying Party for its use in defending any such claim and shall otherwise co-operate on a timely basis with the Indemnifying Party in the defence of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The (i) If any party which is entitled notifies any Indemnified Party with respect to be indemnified hereunder (a Third Party Claim that may give rise to a claim for indemnification against the "INDEMNIFIED PARTY") Borrower under this Section 14, then the Indemnified Party shall promptly give notice hereunder to notify the party required to indemnify (Borrower thereof in writing; provided, however, that no delay on the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because part of the indemnity Indemnified Party in Section 1 and Section 2 hereof and, if such indemnity notifying the Borrower shall arise from the claim of a third party, shall permit relieve the Indemnifying Party from any obligation hereunder unless the Borrower is thereby prejudiced.
(ii) Borrower will have the right to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder Third Party Claim with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party counsel of its election choice reasonably satisfactory to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from at any time within 15 days after the Indemnified Party has given notice to Borrower of the Third Party Claim; provided that the Indemnified Party may retain separate co-counsel at its sole cost and against any expense and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, participate in the defense of such claim or any litigation resulting therefromthe Third Party Claim.
(iii) So long as the Borrower has assumed and is conducting the defense of the Third Party Claim, the Borrower will not consent to the entry of any judgment (other than a judgment of dismissal on or enter into any settlement with respect to the merits Third Party Claim without costs) except with the prior written consent of the Indemnified Party (not to be unreasonably withheld or delayed) unless the judgment or proposed settlement involves only the payment of money damages by the Borrower and does not impose an injunction or equitable relief upon the Indemnified Party.
(iv) In the event Borrower does not assume and conduct the defense of the Third Party Claim (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third Party Claim in any manner he, she or it may reasonably deem appropriate (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to and the Indemnified Party of a release need not consult with or obtain any consent from all liability Borrower in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of connection therewith) and (B) Borrower will remain responsible for any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, Damages the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not suffer resulting from, arising out of, or incurred with respect relating to, in the act of a third partynature of, or caused by the Third Party Claim.
E. Anything in (v) It is not the intent of the Parties hereto that this Section 3 14 may be used to the contrary notwithstanding, the party not primarily responsible for the defense excuse any breach of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction DocumentsLoan Documents by the Bank.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder If any Person shall claim indemnification (the "INDEMNIFIED PARTYIndemnified Party") ----------------- hereunder for any claim other than a third party claim, the Indemnified Party shall promptly give written notice hereunder to the other party required to indemnify from whom indemnification is sought (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of the nature and amount of the claim. If ------------------ an Indemnified Party shall claim indemnification hereunder arising from any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim or demand of a third party, the Indemnified Party shall permit promptly give written notice (a "Third Party Notice") to the Indemnifying Party to assume of the defense of any basis ------------------ for such claim and any litigation resulting from such claimor demand, provided thatsetting forth the nature of the claim or demand in detail. The Indemnifying Party shall defend and, Buyer or Meritage mayif appropriate, in their discretion, undertake, settle at Seller's its own cost and expensethrough counsel of its own choosing, the defense of any claim or demand set forth in a Third Party Notice giving rise to such claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within indemnification. In the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of event the Indemnifying Party shall have been prejudiced as a result of the failure undertakes to give, compromise or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action demand, it shall promptly (and in any event, no later than fifteen (15) days after receipt of the Third Party Notice) notify the Indemnified Party in writing of its intention to do so. The Indemnified Party shall fully cooperate with the Indemnifying Party and its counsel in the defense or compromise of such claim or demand. After the assumption of the defense by the Indemnifying Party, the Indemnifying Party shall not be liable for any legal or other expenses subsequently incurred by the Indemnified Party in connection with such defense, but the Indemnified Party may participate in such defense at its own expense. No settlement of a third party within 10 days after notice thereof shall have been given to claim or demand defended by the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits made without costs) except with the written consent of the Indemnified Party, such consent not to be unreasonably withheld or enter into any settlement (delayed. The Indemnifying Party shall not, except with the written consent of the Indemnified Party) , consent to the entry of a judgment or settlement which does not include as an unconditional term thereof thereof, the giving by the claimant or the plaintiff to the Indemnified Party of a an unconditional release or covenant not to ▇▇▇ from all liability in respect of such third party claim or litigationdemand.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The (a) Promptly after receipt by an indemnified party which (an "Indemnified Party") under this Article V of notice of a claim or the commencement of any proceeding against it (a "Third Party Claim"), such Indemnified Party will, if a claim is entitled to be indemnified hereunder made against an indemnifying party (the an "INDEMNIFIED PARTYIndemnifying Party") shall promptly under this Article V, give written notice hereunder within 15 Business Days to the party required Indemnifying Party of the commencement of such claim or proceeding, describing in reasonable detail such claim or proceeding, but the failure to indemnify notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Indemnifying Party's failure to give such notice.
(b) Upon receipt by the "INDEMNIFYING PARTY") after obtaining Indemnifying Party of written notice of the commencement of any claim as to which recovery may be sought proceeding against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof andIndemnified Party, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party will, unless the claim is a Statute Claim, be entitled to participate in such proceeding and, to the extent that it wishes (unless (i) the Indemnifying Party is also a party to such proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, proceeding with counsel reasonably satisfactory to the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such noticeand, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of after notice from the Indemnifying Party shall have been prejudiced as a result of to the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes assume the defense of such claim or litigationproceeding, the Indemnifying Party shall take all steps necessary in the defense or settlement of will not, as long as it diligently conducts such claim or litigationdefense, and will hold be liable to the Indemnified Party harmless from and against under this Article V for any and all damages caused by or arising out fees of any settlement approved by the Indemnifying Party other counsel or any judgment in connection other expenses with such claim or litigation. The Indemnifying Party shall not, in respect to the defense of such claim or any litigation resulting therefromproceeding, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages each case subsequently incurred by the Indemnified Party in connection with the defense against of such proceeding, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claim or litigation.
D. The claims may be effected by the Indemnifying Party without the Indemnified Party's consent, which consent shall promptly reimburse not be unreasonably withheld, provided that the Indemnified Party's consent shall not be required if (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party for the amount of any judgment rendered will have no liability with respect to any compromise or settlement of such claims effected without its consent, which consent shall not be unreasonably withheld. If notice is given to an Indemnifying Party of the commencement of any proceeding and the Indemnifying Party does not, within twenty days after the Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense of such proceeding, the Indemnifying Party will be bound by any determination made in such proceeding or any compromise or settlement effected by the Indemnified Party.
(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such proceeding, but the Indemnifying Party will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(d) Sellers hereby consent to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Proceeding or the matters alleged therein and agree that process may be served on Sellers with respect to such a claim anywhere in the world.
(e) A claim for indemnification for any matter not involving a third-party claim or litigation a Proceeding shall be asserted by a third party in such litigation and for all damage incurred written notice by the Indemnified Party to the Indemnifying Party. Claims against the ▇▇▇▇▇ Escrow Account or the ▇▇▇▇▇▇▇ Escrow Account will be made in connection accordance with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate procedures set forth in the defense of any such claim or litigationEscrow Agreements.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Nuclear Research Corp)
Procedure for Indemnification. A. The (a) Any party which seeking indemnification under this Article VIII (an “Indemnified Party”) will give each party from whom indemnification is entitled to be indemnified hereunder being sought (or in the "INDEMNIFIED PARTY") shall promptly give notice hereunder case of a Purchaser Indemnified Party to the party required to indemnify Principals on behalf of the Sellers) (the "INDEMNIFYING PARTY"each, an “Indemnifying Party”) after obtaining written notice of any claim as to matter for which recovery may be sought against such Indemnified Party is seeking indemnification, stating the indemnifying party because amount of the indemnity in Section 1 and Section 2 hereof andDamages, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement or any Ancillary Agreement in respect of which such indemnity shall arise right of indemnification is claimed or arises.
(b) The obligations of an Indemnifying Party under this Article VIII with respect to Damages arising from any claims of any third party which are subject to the claim indemnification provided for in this Article VIII (collectively, “Third-Party Claims”) will be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party receives, after the Closing Date, initial notice of a third partyany Third-Party Claim, shall permit the Indemnified Party will give the Indemnifying Party notice of such Third-Party Claim within such time frame as necessary to assume allow for a timely response and in any event within 30 calendar days of the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, receipt by the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give of such notice; provided, or delay by an Indemnified however, that the failure to provide such timely notice will not release the Indemnifying Party in giving such notice, unless, and then only from any of its obligations under this Article VIII except to the extent that, that the rights and remedies of the Indemnifying Party shall have been are actually prejudiced as a result thereby. The Indemnifying Party will be entitled to assume and control the defense of such Third-Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within 30 calendar days of the failure receipt of such notice from the Indemnified Party; provided, however, that the Indemnified Party may participate in such defense through counsel chosen by it at the expense of the Indemnified Party; provided, further, that if the Indemnified Party has been advised by outside counsel that the representation of the Indemnified Party by the Indemnifying Party’s counsel is likely to givepresent such counsel with a conflict of interest, or delay in giving, such notice. Failure by an then the Indemnifying Party shall pay the reasonable fees and expenses of the Indemnified Party’s counsel. In the event the Indemnifying Party exercises the right to notify an undertake any such defense against any such Third-Party Claim as provided above, the Indemnified Party of its election to defend any will cooperate with the Indemnifying Party in such claim or action by a third party within 10 days after notice thereof shall have been given defense and make available to the Indemnifying Party shall be deemed a waiver all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party of its right to defend such claim is, directly or action.
B. If the Indemnifying Party assumes indirectly, conducting the defense of against any such claim or litigationThird-Party Claim, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold cooperate with the Indemnified Party harmless from in such defense and against any make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and all damages caused information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by or arising out of any settlement approved by the Indemnified Party. Notwithstanding anything in this Section 8.5 to the contrary, the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall may not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified PartyParty (such consent not to be unreasonably withheld or delayed), settle or enter into compromise any settlement Third-Party Claim or consent to the entry of any judgment unless such settlement, compromise or judgment (except with i) does not involve any finding or admission of any violation of Law or any violation of the written consent rights of any Person and would not have any adverse effect on any other claims that may be made against the Indemnified Party, (ii) which does not include as an unconditional term thereof the giving involve any relief other than monetary damages that are paid in full by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soand (iii) completely, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, finally and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by unconditionally releases the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The and would not otherwise adversely affect the Indemnified Party. So long as the Indemnifying Party shall promptly reimburse is contesting any such Third-Party Claim in good faith, the Indemnified Party for shall not pay or settle any such claim without the amount of any judgment rendered with respect Indemnifying Party’s consent, such consent not to any be unreasonably withheld or delayed. If the Indemnifying Party is not contesting such claim or litigation by a third party in such litigation and for all damage incurred by good faith, then the Indemnified Party in connection with may conduct and control, through counsel of its own choosing and at the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect toexpense of the Indemnifying Party, the act settlement (after giving prior written notice of a third party.
E. Anything in this Section 3 its intention to do so to the contrary notwithstandingIndemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, provided that such consent shall not be required if the party not primarily responsible for Indemnifying Party assumed the defense of a claim or litigation may, with counsel of its choice and at its expense, participate Third-Party Claim but failed to contest such Third-Party Claim in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amountgood faith) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderdefense thereof, and the Indemnifying Party shall be entitled cooperate with it in connection therewith. The failure of the Indemnified Party to interest on participate in, conduct or control such defense shall not relieve the amount Indemnifying Party of such claim, which interest shall accrue at a rate of [ * ] per annumany obligation it may have hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sucampo Pharmaceuticals, Inc.)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (a) An Indemnified Party shall give written notice (the "INDEMNIFIED PARTY"“Claim Notice”) shall promptly give notice hereunder of any Indemnification Claim (i) in the case of an Indemnification Claim against Buyer, to Buyer and (ii) in the case of an Indemnification Claim against Sellers, to Sellers, reasonably promptly, but in any event (A) prior to expiration of any Survival Period for such Indemnification Claim and (B) if such Indemnification Claim relates to the assertion against an Indemnified Party of any Claim by a third party required to indemnify (a “Third Party Claim”), within forty-five (45) days after receipt by the "INDEMNIFYING PARTY") after obtaining Indemnified Party of written notice of any claim as a legal process relating to which recovery may be sought against such Third Party Claim; provided, however, that the indemnifying failure or delay to so notify the party because of that is required to provide indemnification (the indemnity in Section 1 and Section 2 hereof and, if such indemnity “Indemnifying Party”) under subsection 7.5(a)(ii)(B) shall arise from the claim of a third party, shall permit not relieve the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer obligation or Meritage may, in their discretion, undertake, at Seller's cost and expense, liability that the defense of any claim for which Seller is responsible hereunder with respect Indemnifying Party may have to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such noticeParty, unless, and then only to the extent that, the rights Indemnifying Party demonstrates that the Indemnifying Party’s ability to defend or resolve such Indemnification Claim is adversely affected thereby. Any such Claim Notice shall describe in reasonable detail the facts and remedies circumstances on which the asserted Indemnification Claim is based and specify the amount of such Indemnification Claim if then ascertainable.
(b) Unless the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay contests in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been writing given to the Indemnifying Indemnified Party shall be deemed a waiver within thirty (30) days of receipt by the Indemnifying Party of its right a Claim Notice that Losses identified in such Claim Notice constitute indemnifiable Claims, the Indemnified Party shall, subject to defend the other terms of this Article VII, be paid the amount of the Losses related to such claim Indemnification Claim or action.
B. the uncontested portion thereof. An Indemnifying Party shall not object to any Indemnification Claim unless (i) it believes in good faith that the Indemnified Party is not entitled to be indemnified with respect to the Losses specified therein or (ii) it lacks sufficient information to assess the validity of the Indemnification Claim. If the Indemnifying Party assumes objects to an Indemnification Claim on the defense basis that it lacks sufficient information, it shall promptly request from the Indemnified Party any specific additional information reasonably necessary for it to assess such Indemnification Claim, and the Indemnified Party shall, to the extent the Indemnified Party reasonably can, provide the additional information reasonably requested. Upon receipt of such claim or litigationadditional information, the Indemnifying Party shall take all steps necessary review it as soon as reasonably practicable and notify the Indemnified Party of any withdrawal or modification of the objection. All disputed Indemnification Claims shall be resolved by Buyer and Sellers in accordance with either (A) a mutual agreement between Buyer and Sellers, which shall be memorialized in writing, or (B) the final decision of a court or other trier of fact.
(i) The Indemnifying Party shall have the right, upon written notice given to the Indemnified Party within fifteen (15) days after receipt of a Claim Notice relating to a Third Party Claim, to assume the defense or settlement handling of such claim Third Party Claim at the Indemnifying Party’s sole expense, in which case the provisions of Section 7.5(c)(ii) shall govern.
(ii) The Indemnifying Party shall select counsel to conduct the defense or litigation, and will hold handling of such Third Party Claim reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall defend or handle such Third Party Claim in consultation with the Indemnified Party harmless from and against any in such manner as is reasonable under the circumstances and all damages caused by or arising out shall keep the Indemnified Party timely apprised of any settlement approved by the Indemnifying status of such Third Party or any judgment in connection with such claim or litigationClaim. The Indemnifying Party shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified Party, agree to a settlement of, or enter into consent to the entry of any judgment with respect to, any Third Party Claim, which consent will not be unreasonably withheld, unless (A) there is no finding or admission of any violation of any federal, state, local or foreign Laws, rules, regulations, ordinances, decrees or Orders and there is no effect on any other Claims that may be made against the Indemnified Party, (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and (C) the terms of the settlement (except or judgment are confidential pursuant to a confidentiality agreement that is reasonably acceptable to the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party and shall be entitled to participate in but not control the defense or handling of such Third Party Claim with its own counsel and at its own expense. The Indemnified Party shall not, without the prior written consent of the Indemnified PartyIndemnifying Party (which consent shall not be unreasonably withheld), agree to a settlement of any Third Party Claim that is being defended and handled by the Indemnifying Party pursuant to this Section 7.5(c)(ii).
(d) which (i) If (A) the Indemnifying Party does not include as an unconditional term thereof give written notice to the giving by Indemnified Party within fifteen (15) days after receipt of the claimant or the plaintiff to Claim Notice from the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If Third Party Claim that the Indemnifying Party does not has elected to assume the defense or handling of any such claim by a third party Third Party Claim or litigation after receipt of notice from (B) the Indemnified Party to do sohas reasonably determined, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriateupon advice of counsel, and unless that having common counsel with the Indemnifying Party would present such counsel with a conflict of interest, then the provisions of Section 7.5(d)(ii) shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigationgovern.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Stock and Interest Purchase Agreement (Coinstar Inc)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder Each Indemnified Party (Buyer Indemnified Party and Seller Indemnified Party) under this Section shall, promptly after the "INDEMNIFIED PARTY") shall promptly give receipt of notice hereunder to of the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice commencement of any claim as to against such Indemnified Party in respect of which recovery indemnity may be sought against from a Party under this Section, notify the indemnifying party because other Party in writing of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim commencement thereof. The omission of a third party, shall permit the Indemnifying any Indemnified Party to assume the defense so notify such Party of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder action shall not be affected by relieve such Party from any failure of an liability which it may have to such Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, under this Section unless, and then only to the extent that, the such omission results in such Party’s loss of substantive or practical rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such noticedefenses. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend In case any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and brought against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with and it shall notify the written consent other Party of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of commencement thereof, such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying other Party shall be entitled to interest assume the defense thereof at its expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment; provided, however, that any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense at its own expense. Notwithstanding the foregoing, in any claim in which both Buyer or Sellers, on the amount one hand, and an Indemnified Party, on the other hand, are, or are reasonably likely to become, a party, such Indemnified Party shall have the right to employ separate counsel and to control its own defense of such claim if, in the reasonable opinion of counsel to such Indemnified Party, either (x) one or more defenses are available to the Indemnified Party that are not available to the other Party or (y) a conflict or potential conflict exists between Buyer or Seller, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable; provided, however, that the Party against which indemnification is sought (i) shall not be liable for the fees and expenses of more than one counsel to all Indemnified Parties and (ii) shall reimburse the Indemnified Parties for all of such fees and expenses of such counsel incurred in any action, as such expenses are incurred. Each Party agrees that it will not, without the prior written consent of the Party seeking indemnification, settle, compromise, or consent to the entry of any judgment in any pending or threatened claim relating to the matters contemplated hereby unless such settlement, compromise, or consent includes an unconditional release of each Indemnified Party from all liability arising or that may arise out of such claim. Upon making any payment to an Indemnified Party for a loss under this Section, the Party against which interest indemnification is sought shall accrue at a rate of [ * ] per annumbe subrogated to any rights that the Indemnified Party may have against any other person with respect to the subject matter underlying such indemnification claim.
Appears in 1 contract
Sources: Stock Purchase Agreement
Procedure for Indemnification. A. The In the event a party which is entitled intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 9.1 or 9.2 hereof (the "INDEMNIFIED PARTY") ), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or Proceeding in any action instituted against the Indemnified Party as to which recovery or other action may be sought against the indemnifying party Indemnified Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 9.1 or 9.2 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; PROVIDED, provided thatHOWEVER, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder or Proceeding which, if not first paid, discharged or otherwise complied with, would with respect to substantial certainty result in a material interruption or disruption of the business of the Indemnified Party, taken as a whole, or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 twenty (20) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. . If the Indemnifying Party assumes the defense of such claim claim, investigation or litigationProceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall take include taking all steps necessary in the defense or settlement of such claim claim, investigation or litigation, Proceeding and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim claim, investigation or litigationProceeding, except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnifying Party shall not, in the defense of such claim or any litigation Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified PartyParty)(which consent shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any violation of law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party (ii) the sole relief provided is monetary damages that are paid in full for Losses which does not are applied against the BASKET AMOUNT and (iii) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability Liability in respect of to such claim or litigation.
C. . If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim, but solely by observation and comment to the Indemnifying Party, and the counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; or (ii) the Indemnifying Party's legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party, but in no event shall the Indemnifying Party be obligated to pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action or Proceeding in any one jurisdiction. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost (including attorneys' fees) of defending the same, the Indemnified Party may settle such claim or litigation Proceeding on such terms as it may reasonably deem appropriate and the Indemnifying Party shall shall, subject to its defenses and the applicability of any remaining threshold loss amount provided for in Section 9.1(a) hereof, promptly reimburse the Indemnified Party for the amount of such settlement and for all reasonable costs (including attorneys' fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim, investigation or litigation, or if any such claim or litigation.
D. The litigation is not so settled, the Indemnifying Party shall shall, subject to its defenses and the applicability of any remaining BASKET AMOUNT provided for in Section 9.1(a) hereof, promptly reimburse the Indemnified Party for the amount of any final nonappealable judgment rendered with respect to any claim or litigation by a third party in such litigation and for all costs (including attorneys' fees), expenses and damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in . Any Loss under this Section 3 Article 9: (a) shall be computed net of (x) any actual income tax benefit resulting therefrom to the contrary notwithstandingIndemnified Party and (y) any insurance coverage with respect thereto, (b) shall be increased to the extent necessary to indemnify and hold harmless the Indemnified Party from any actual amount of Liability for Taxes incurred and paid which is attributable to a previous income tax deduction which is disallowed or the receipt of the indemnity payment with respect to such claim; provided, further, that, in all cases, the party timing of the receipt or realization of any insurance proceeds or income tax benefits shall be taken into account in determining the amount of reduction of claims, (c) shall be based upon the actual dollar amount of the proposed Loss, without use of any multiplier, and (d) except for Losses related to title to the Stock or to Taxes shall be limited to and shall not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate exceed in the aggregate for all Losses, one-half (1/2) of the Purchase Price. Each party shall cooperate in good faith and in all respects with each Indemnifying Party and its representatives (including without limitation its counsel) in the investigation, negotiation, settlement, trial and/or defense of any such claim or litigation.
F. Buyer Proceedings (and Meritage may at their option set-off any of Seller's indemnification obligations appeal arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amounttherefrom) or any of the Transaction Documents.
G. claim. The parties agree that if shall cooperate with the Indemnifying Party fails other in any notifications to promptly reimburse the Indemnified Party for the amount and information requests of any valid indemnification claim hereunderinsurers. No individual representative of any Person, the Indemnifying Party or their respective Affiliates shall be entitled personally liable for any Loss under this Agreement, except as specifically agreed to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumby said individual representative.
Appears in 1 contract
Procedure for Indemnification. A. The In the event a party which is entitled intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 11.1 or 11.2 hereof (the "INDEMNIFIED PARTYIndemnified Party") ), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim or the service of a summons or other initial legal process in any action instituted against the Indemnified Party as to which recovery may be sought against the indemnifying party Indemnifying Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 11.1 or 11.2 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; provided, provided thathowever, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified 37 Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder with respect to or litigation which, if not first paid, discharged or otherwise complied with, would result in an interruption or disruption of the business of the Indemnified Party or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 twenty (20) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. . If the Indemnifying Party assumes the defense of such claim or litigationlitigation resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim or litigation shall take include taking all steps necessary in the defense or settlement of such claim or litigation, litigation and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, Party or enter into any settlement (except with the written consent of the Indemnified Party, which shall not be unreasonably withheld) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect to such claim or litigation. If the Indemnifying Party assumes the defense of such claim or litigation.
C. litigation resulting therefrom, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to conduct its defense. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost (including attorneys' fees) of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all costs (including attorneys' fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The , or if any such claim or litigation is not so settled, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all costs (including attorneys' fees), expenses and damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The (i) In the event a party which is entitled intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 11.a. or 11.b. hereof (the "INDEMNIFIED PARTYIndemnified Party") ), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim or the service of a summons or other initial legal process in any action instituted against the Indemnified Party as to which recovery may be sought against the indemnifying party Indemnifying Party because of the indemnity indemnification provided for in Section 1 and Section 2 11.a. or 11.b. hereof and(but the failure of the Indemnified Party to give prompt notice shall not relieve the Indemnifying Party of liability except to the extent of actual prejudice to the Indemnifying Party resulting therefrom). If, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense defense, with counsel reasonably satisfactory to the Indemnified Party, of any such claim and any litigation resulting from such claimclaim at the sole expense of the Indemnifying Party; provided, provided thathowever, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for or litigation which Seller is responsible hereunder with respect may reasonably be expected to any lots, land, rights to purchase lots result in immediate non- monetary damages or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such noticerelief. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 twelve (12) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. (ii) If the Indemnifying Party assumes the defense of such claim or litigationlitigation resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim or litigation shall take include taking all steps necessary in the defense or settlement of such claim or litigation, litigation and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed, or conditioned) or enter into any settlement (except with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed, or conditioned) which does not unless (i) there is no finding or admission of any violation of law and no material adverse effect on any other claims that could reasonably be expected to be made against the Indemnified Party; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability Liability in respect of to such claim or litigation.
C. (iii) If the Indemnifying Party assumes the defense of such claim or litigation resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim, but the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to conduct its defense unless any of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; or (ii) the Indemnifying Party's legal counsel shall advise the Indemnifying Party, in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence if applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party, but in no event shall the Indemnifying Party be obligated to pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action, or proceeding in any one jurisdiction.
(iv) If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost (including attorneys' fees) of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may reasonably deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all costs (including attorneys' fees), expenses, and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The , or if any such claim or litigation is not so settled, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage costs (including attorneys' fees), expenses, and damages incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The party following provisions shall apply to any Claims for which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party may be obligated to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of indemnify an Indemnified Party pursuant to this Agreement:
(a) upon receipt from a third party by the Indemnified Party of notice of a Claim or the Indemnified Party becoming aware of any Claims in respect of which the Indemnified Party proposes to demand indemnification from the Indemnifying Party, the Indemnified Party shall give notice to that effect to the Indemnifying Party with reasonable promptness, provided that failure to give such notice, or delay by an notice shall not relieve the Indemnifying Party from any liability it may have to the Indemnified Party in giving such notice, unless, and then only except to the extent thatthat the Indemnifying Party is prejudiced thereby;
(b) in the case of Claims arising from third parties, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result the right by notice to the Indemnified Party not later than 30 days after receipt of the failure notice described in Section 6.4(a) above to giveassume the control of the defense, compromise or delay in givingsettlement of the Claims, provided that such notice. Failure assumption shall, by an Indemnifying Party its terms, be without costs to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to and the Indemnifying Party shall at the Indemnified Party’s request furnish it with reasonable security against any costs or other liabilities to which it may be deemed a waiver or become exposed by reason of such defense, compromise or settlement;
(c) upon the assumption of control by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigationas aforesaid, the Indemnifying Party shall take all steps necessary in diligently proceed with the defense defense, compromise or settlement of such claim or litigationthe Claims at its sole expense, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out including employment of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff counsel reasonably satisfactory to the Indemnified Party of a release from all liability and, in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soconnection therewith, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriateshall co-operate fully, and unless but at the expense of the Indemnifying Party, to make available to the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus all pertinent information and witnesses under the Indemnified Party's estimate ’s control, make such assignments and take such other steps as in the opinion of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and counsel for the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect are necessary to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if enable the Indemnifying Party fails to promptly reimburse conduct such defense; provided always that the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on reasonable security from the amount Indemnifying Party for any expense, costs or other liabilities to which it may be or may become exposed by reason of such claimco-operation;
(d) the final determination of any such Claims arising from third parties, which interest including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or invalidity, as the case may be, of such Claims against the Indemnifying Party hereunder; and
(e) should the Indemnifying Party fail to give notice to the Indemnified Party as provided in Section 6.4(b) above, the Indemnified Party shall accrue at a rate be entitled to make such settlement of [ * ] per annumthe Claims as in its sole discretion may appear reasonably advisable, and such settlement or any other final determination of the Claims shall be binding upon the Indemnifying Party.
Appears in 1 contract
Sources: Amalgamation Agreement (WonderFi Technologies Inc.)
Procedure for Indemnification. A. The Subject to rights of offset, recoupment or calculation set forth in this Agreement, in the event a party which is entitled intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 10.1 or 10.2 hereof (the "INDEMNIFIED PARTY") ), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or Proceeding in any action instituted against the Indemnified Party as to which recovery or other action may be sought against the indemnifying party Indemnifying Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 10.1 or 10.2 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; PROVIDED, provided thatHOWEVER, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder or litigation which, if not first paid, discharged or otherwise complied with, would with respect to substantial certainty result in a material interruption or disruption of the Business of the Indemnified Party, taken as a whole, or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 twenty (20) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. . If the Indemnifying Party assumes the defense of such claim claim, investigation or litigationProceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall take include taking all steps necessary in the defense or settlement of such claim claim, investigation or litigation, Proceeding and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim claim, investigation or litigationProceeding, except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnifying Party shall not, in the defense of such claim or any litigation Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified PartyParty)(which consent shall not be unreasonably withheld, delayed or conditioned) which does not unless (i) there is no finding or admission of any violation of law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party (ii) the sole relief provided is monetary damages and (iii) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability Liability in respect of to such claim or litigation.
C. . If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim, but solely by observation and comment to the Indemnifying Party, and the counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; or (ii) the Indemnifying Party's legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party, but in no event shall the Indemnifying Party be obligated to pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action or Proceeding in any one jurisdiction. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost (including attorneys' fees) of defending the same, the Indemnified Party may settle such claim or litigation Proceeding on such terms as it may reasonably deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all costs (including attorneys' fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim, investigation or litigation, or if any such claim or litigation.
D. The litigation is not so settled, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all costs (including attorneys' fees), expenses and damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything . Each party shall cooperate in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, good faith and in all respects with counsel of each Indemnifying Party and its choice and at representatives (including without limitation its expense, participate counsel) in the investigation, negotiation, settlement, trial and/or defense of any such claim or litigation.
F. Buyer Proceedings (and Meritage may at their option set-off any of Seller's indemnification obligations appeal arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amounttherefrom) or any of the Transaction Documents.
G. claim. The parties agree that if shall cooperate with the Indemnifying Party fails other in any notifications to promptly reimburse the Indemnified Party for the amount and information requests of any valid indemnification claim hereunderinsurers. No individual representative of any Person, the Indemnifying Party or their respective Affiliates shall be entitled personally liable for any Loss under this Agreement, except as specifically agreed to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumby said individual representative.
Appears in 1 contract
Procedure for Indemnification. A. The party which is (a) In the event that a Person entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder indemnification pursuant to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice this Article IX sustains or incurs any Losses in respect of any claim as to which recovery indemnity may be sought against pursuant to this Article IX (an “Indemnified Party”), the indemnifying Indemnified Party shall promptly send written notice (the “Indemnification Notice”) to any party because or parties obligated to provide indemnification pursuant to this Article IX (the “Indemnifying Party”). The Indemnification Notice shall set forth in reasonable detail in light of the indemnity circumstances then known to such Indemnified Party (i) the factual basis for such claim, (ii) the amount of Losses incurred or suffered by the Indemnified Party (if known at such time) or the amount of Losses that the Indemnified Party reasonably anticipates it will have to pay, and (iii) the specific representation, warranty or covenant on which such claim for indemnification is based; provided, however, that any delay or failure by the Indemnified Party in Section 1 and Section 2 hereof andgiving such Indemnification Notice, if or any failure to provide in reasonable detail the basis for such indemnity shall arise from the claim or amount of a third partyLosses incurred, shall permit not relieve the Indemnifying Party of its obligations under this Agreement except and only to the extent that the Indemnifying Party is actually prejudiced by such delay or failure.
(b) If such Indemnification Notice pertains solely to a breach of representation, warranty, covenant or agreement contained in this Agreement (or in an officer’s certificate delivered with respect to Section 7.1(c) or Section 7.2(d)) for direct indemnification pursuant to this Agreement, then the Indemnifying Party shall have twenty (20) Business Days following receipt of the Indemnification Notice to make such investigation of the claim as the Indemnifying Party deems reasonably necessary. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said twenty (20) Business Day period (or any mutually agreed upon extension thereof) on the validity and amount of such claim, the Indemnifying Party shall promptly thereafter pay to the Indemnified Party such agreed amount; provided that in the event the AHI Seller or any of the Principals are the Indemnifying Party, the AHI Seller or any such Principal, in its or his sole discretion, as applicable, shall be permitted to pay the Indemnified Party such agreed amount in cash and/or shares of NSAM Common Stock (valued at the fair market value of shares of NSAM Common Stock as of the date of payment) that are not subject to vesting or potential forfeiture pursuant to the Vesting and No-Sale Agreement. Otherwise, the parties shall have such rights as may be available to them under this Agreement (including as set forth in Section 9.9) and applicable Laws.
(c) If such Indemnification Notice pertains to a claim or demand by a third party (a “Third Party Claim”), then the Indemnifying Party shall have twenty (20) Business Days following receipt of the Indemnification Notice to (i) make such investigation of the claim or demand as the Indemnifying Party deems reasonably necessary and (ii) notify the Indemnified Party of whether or not the Indemnifying Party desires to defend the Indemnified Party against such Third Party Claim. During such twenty (20) Business Day period, the Indemnified Party shall make such filings, including motions for continuance (and answers if a motion for continuance has not been granted), as may be necessary to preserve the parties’ positions and rights with respect to such claim or demand.
(d) The Indemnifying Party shall be entitled to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertakeThird Party Claim with counsel reasonably satisfactory to the Indemnified Party, at Seller's cost and the Indemnifying Party’s sole expense, ; provided that the Indemnifying Party shall not be entitled to assume or continue control of the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within Third Party Claim if (i) the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay has been advised by counsel that an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies actual conflict of interest exists between the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim Third Party Claim, (ii) the Third Party Claim relates to or litigation.
D. The Indemnifying arises in connection with any criminal Action, (iii) the Third Party shall promptly reimburse Claim seeks an injunction or equitable relief against any Indemnified Party, or (iv) based on a reasonable estimate of Losses relating to such Third Party Claim, after giving effect to any applicable limitations on indemnification in Section 9.6 and the ownership percentages of the parties in the Company (other than in cases where the Indemnified Party is the Company), the Indemnified Party would be responsible for more of the Losses than the Indemnifying Party in the event that such Third Party Claim was determined in an adverse manner to the Indemnified Party; provided that for purposes of this clause (iv), the reasonable estimate of Losses shall be an amount mutually agreed to by each of Purchaser and the AHI Seller after good faith discussions concerning the amount of any judgment rendered with respect such estimate of Losses taking into account all facts and circumstances related to any claim or litigation by a third party in such litigation the Third Party Claim and for all damage incurred by the potential indemnification obligation. If the Indemnifying Party (A) elects not to defend the Indemnified Party in connection with the defense against such claim or litigationa Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (B) is not resulting from, arising out of, or incurred with respect to, entitled to defend such Third Party Claim as a result of the act of a third party.
E. Anything Indemnified Party’s election to defend the Third Party Claim as provided in this Section 3 to the contrary notwithstanding9.8(d), the party not primarily responsible for or (C) after assuming the defense of a claim Third Party Claim, fails to take reasonable steps necessary to defend such Third Party Claim within five (5) Business Days after receiving written notice from the Indemnified Party to the effect that Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense (at the Indemnifying Party’s sole expense).
(e) If the Indemnifying Party is entitled to and assumes the defense of any Third Party Claim, (i) it shall not settle the Third Party Claim unless (A) the settlement does not entail any admission of liability on the part of any Indemnified Party or litigation maythe requirement that any Indemnified Party take any action other than the delivery of a customary release relating to the specific matter at issue, and (B) the settlement includes an unconditional release of each Purchaser Indemnified Party or Seller Indemnified Party, as applicable, reasonably satisfactory to the Indemnified Party, from all Losses with counsel of its choice respect to such Third Party Claim, and at its expense, (ii) the Indemnified Party shall have the right (but not the obligation) to participate in the defense of any such claim or litigation.
F. Buyer Third Party Claim and Meritage may to employ, at their option set-off any of Seller's indemnification obligations arising under this Agreement against its own expense, counsel separate from counsel employed by the Future Land Profit component of the purchase price for the Optioned Real PropertyIndemnifying Party. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if If the Indemnifying Party fails (x) is not entitled to promptly reimburse assume the defense of the Third Party Claim, (y) declines to assume the defense of the Third Party Claim or (z) withdraws from the defense of the Third Party Claim, then the Indemnified Party for shall not, without the amount prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned), settle or compromise any Third Party Claim or permit a default or consent to entry of any valid indemnification claim hereunderjudgment. Notwithstanding anything in this Section 9.8 to the contrary, if the Indemnified Party proposes to settle such Third Party Claim prior to a final judgment thereon or to forgo any appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and, prior to any settlement by the Indemnified Party, the Indemnifying Party shall be entitled will have the right to interest on participate in the amount settlement or assume or reassume the defense of such claimclaims or proceeding.
(f) An Indemnified Party will cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, which interest shall accrue at a rate of [ * ] per annumthe Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably requested by the Indemnifying Party.
Appears in 1 contract
Sources: Unit Purchase Agreement (NorthStar Asset Management Group Inc.)
Procedure for Indemnification. A. The In the event a party which is entitled intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 11.1 or 11.2 hereof (the "INDEMNIFIED PARTY") ), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim or the service of a summons or other initial legal process in any action instituted against the Indemnified Party as to which recovery may be sought against the indemnifying party Indemnifying Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 11.1 or 11.2 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; PROVIDED, provided thatHOWEVER, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder with respect to or litigation which, if not first paid, discharged or otherwise complied with, would result in an interruption or disruption of the business of the Indemnified Party or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 ten (10) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. . If the Indemnifying Party assumes the defense of such claim or litigationlitigation resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim or litigation shall take include taking all steps necessary in the defense or settlement of such claim or litigation, litigation and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, Party or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of to such claim or litigation.
C. . If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost (including attorneys' fees) of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all costs (including attorneys' fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The , or if any such claim or litigation is not so settled, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all costs (including attorneys' fees), expenses and damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder If any Person shall claim indemnification (the "INDEMNIFIED PARTYIndemnified Party") hereunder for any claim other than a third-party claim, the Indemnified Party shall promptly give written notice hereunder to the other party required to indemnify from whom indemnification is sought (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of the nature and amount of the claim. If an Indemnified Party shall claim indemnification hereunder arising from any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim or demand of a third party, the Indemnified Party shall permit promptly give written notice (a "Third-Party Notice") to the Indemnifying Party to assume of the defense of any basis for such claim and any litigation resulting from such claimor demand, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, setting forth the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies nature of the claim or demand in detail. The Indemnifying Party shall have been prejudiced as the right to compromise or, if appropriate, defend at its own cost and through counsel of its own choosing, any claim or demand set forth in a result of Third-Party Notice giving rise to such claim for indemnification. In the failure to give, or delay in giving, such notice. Failure by an event the Indemnifying Party undertakes to notify an Indemnified Party of its election to compromise or defend any such claim or action demand, it shall promptly (and in any event, no later than fifteen (15) days after receipt of the Third-Party Notice) notify the Indemnified Party in writing of its intention to do so. The Indemnified Party shall fully cooperate with the Indemnifying Party and its counsel in the defense or compromise of such claim or demand. After the assumption of the defense by the Indemnifying Party, the Indemnified Party shall not be liable for any legal or other expenses subsequently incurred by the Indemnifying Party, in connection with such defense, but the Indemnified Party may participate in such defense at its own expense. No settlement of a third party within 10 days after notice thereof shall have been given to claim or demand defended by the Indemnifying Party shall be deemed a waiver by made without the Indemnifying Party written consent of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with Party, such claim or litigationconsent not to be unreasonably withheld. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, consent to the entry of a judgment or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof thereof, the giving by the claimant or the plaintiff to the Indemnified Party of a an unconditional release from all liability in respect of such third party claim or litigationdemand.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Asset Purchase Agreement (Diamond Technology Partners Inc)
Procedure for Indemnification. A. The obligations of a party seeking indemnification under Section 9 shall be subject to the following conditions:
a. If any third person asserts a claim against a Beowulf E&D Indemnified Party or Terawulf Indemnified Party (the “Indemnified Party”) of such a nature for which is entitled to be indemnified the Indemnified Party will expect indemnification from the other party hereunder (the "INDEMNIFIED PARTY") “Indemnifying Party”), or if a party desires to assert a claim against another party for which it will expect indemnification hereunder, the Indemnified Party shall promptly give prompt written notice hereunder thereof to the party required to indemnify Indemnifying Party;
b. Any claim in respect of which indemnification hereunder is sought must be in writing (the "INDEMNIFYING PARTY"i) after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay claims made by an Indemnified Party in giving for its own account, within one hundred twenty (120) days from the date such notice, unlessIndemnified Party has or should have had knowledge that an indemnifiable event has occurred, and then only (ii) as to claims made by third persons against an Indemnified Party for which an Indemnifying Party is asserted to be liable under the extent thatprovisions hereof, within the rights lesser of (x) thirty (30) days from the date such third party claim is first made and remedies (y) one half of the applicable time limit for within which a response to such claim must be filed or served;
c. In the event that the Indemnifying Party accepts the Indemnified Party’s claim for indemnification, with respect to third parties the Indemnifying Party shall have been prejudiced as a result control of the failure defense thereof, the right to giveselect counsel, or delay in giving, such notice. Failure by an and the right to settle the claim; except for situations where there is a conflict of interest between the Indemnifying Party to notify an and the Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to Party, in which case the Indemnifying Party shall have the right to participate in the defense of the claim through independent counsel and the matter shall not be deemed settled in a waiver by manner adversely affecting the interest of the Indemnifying Party of its right to defend such claim or actionwithout the Indemnifying Party’s prior written consent.
B. If d. In the event that the Indemnifying Party assumes disputes the defense of such claim Indemnified Party’s right to indemnity or litigationaccepts the Indemnified Party’s right to indemnity only in part, the Indemnifying Party shall take all steps necessary in have the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent right to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such the claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component and, with respect to that portion of the purchase price claim for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if which the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid has accepted its indemnification claim obligations hereunder, the matter shall not be settled in a manner adversely affecting the interest of the Indemnifying Party shall be entitled to interest on without the amount of such claim, which interest shall accrue at a rate of [ * ] per annumIndemnifying Party’s prior written consent.
Appears in 1 contract
Sources: Administrative and Infrastructure Services Agreement (Ikonics Corp)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder If any PBA Indemnitee or TPC Indemnitee (the each, an "INDEMNIFIED PARTY") shall promptly give receives notice hereunder of any claim or the commencement of any action or proceeding with respect to the which another party required to indemnify (the each, an "INDEMNIFYING PARTY") after obtaining written notice of any claim as is obligated to which recovery may be sought against indemnify pursuant to Section 12.1 or 12.2, the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity Indemnified Party shall arise from the claim of a third party, shall permit promptly give the Indemnifying Party or Parties written notice thereof. Such notice shall describe the claim in reasonable detail and shall indicate the amount (estimated if necessary) of the loss that has been or may be sustained by the Indemnified Party in connection therewith. The Indemnifying Party or Parties may elect to assume the defense of compromise or defend, at their own expense and by their own counsel, any such claim matter involving the asserted liability of the Indemnified Party. If the Indemnifying Party or Parties elect to compromise or defend such asserted liability, they shall within 30 days (or sooner, if the nature of the asserted liability so requires) notify the Indemnified Party of their intent to do so, and the Indemnified Party shall cooperate, at the Indemnifying Party's or Parties' expense, in the compromise of, or defense against, any litigation resulting from such claimasserted liability. If the Indemnifying Party or Parties elect not to compromise or defend against the asserted liability or fail to diligently defend against the same, if the Indemnified Party reasonably determines that the Indemnifying Party's or Parties' counsel has a conflict of interest with the Indemnified Party or the Indemnifying Party or Parties or such counsel are not adequately defending the Indemnified Party's interests, or if the Indemnifying Party or Parties fail to notify the Indemnified Party of their election as provided thatherein, Buyer or Meritage the Indemnified Party may, if acting in their discretionaccordance with its good faith business judgment, undertakepay, compromise or defend such asserted liability at Sellerthe Indemnifying Party's cost and or Parties' expense, and such settlement shall be binding on the defense Indemnifying Party or Parties for purposes of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertythis Section 12.4. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by neither the Indemnifying Party or Parties nor any judgment in connection with such Indemnified Party may settle or compromise any claim or litigationover the reasonable good faith objection of the other. The In any event, the Indemnified Party and Indemnifying Party shall notor Parties may each participate, at their own expense, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. asserted liability. If the Indemnifying Party does not assume the defense of or Parties elect to defend any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soclaim, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless shall make available to the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in or Parties any books, records or other documents within its control that are necessary or appropriate for such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigationdefense.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Pharmacy Buying Association Inc)
Procedure for Indemnification. A. The Promptly after a party which is entitled hereto (hereinafter the "Indemnified Party") has received notice of or has knowledge of any claim by a person not a party to be indemnified hereunder this Agreement ("Third Person") or the commencement of any action or proceeding by a Third Person, the Indemnified Party shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to this Agreement (hereinafter the "Indemnifying Party"), give the Indemnifying Party written notice of such claim or the commencement of such action or proceeding (the "INDEMNIFIED PARTYNotice") ). The Notice shall promptly give notice hereunder to state the party required to indemnify (nature and the "INDEMNIFYING PARTY") after obtaining written notice basis of any such claim as to which recovery may be sought against the indemnifying party because and a reasonable estimate of the indemnity in Section 1 and Section 2 hereof andamount thereof. The Indemnifying Party, if such indemnity shall arise from after receipt of the claim of a third partyNotice, shall permit defend and settle, at its own expense and by its own counsel, each such matter; provided, however, that the Indemnifying Party will not consent to assume the defense entry of any such claim and judgment or enter into any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder settlement with respect to the third party claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably); and provided further, that the Indemnifying Party may consent to the entry of a judgment or enter into a settlement with respect to a third party claim without the prior written consent of the Indemnified Party if such judgment or settlement involves only the payment by the Indemnifying Party of monetary damages (if any) and does not (a) impose an injunction or other equitable relief upon (or constitute an admission of guilt, liability, fault or responsibility by) the Indemnified Party, or (b) result in any lots, land, rights to purchase lots or land, project or subdivision within adverse consequences for the Owned Real Propertybusiness and operations of the Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to indemnification hereunder participate in any matter through counsel of its own choosing. Such separate representation shall not be affected by any failure at the cost and expense of an the Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of as long as the Indemnifying Party shall have been prejudiced as a result is pursuing the defense of such matter diligently, reasonably and in good faith. If the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election fails to defend any such claim or action by a third party within 10 days after notice thereof shall have been given matter to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold which the Indemnified Party harmless from is entitled to indemnification hereunder diligently, reasonably and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do sogood faith, the Indemnified Party may defend against undertake such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with through counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumParty's expense.
Appears in 1 contract
Sources: Plan and Agreement of Reorganization (Scottsdale Technologies Inc)
Procedure for Indemnification. A. The (a) Upon becoming aware of a claim for any Losses, the entity seeking indemnification under this Article IX (the "Indemnified Party") shall give notice of such claim to the party which from whom indemnification is sought (the "Indemnifying Party"); provided, however, that no delay in giving notice hereunder shall relieve the Indemnifying Party from its obligations hereunder, except and to the extent that the Indemnifying Party is thereby prevented from fulfilling such obligations.
(b) Within thirty (30) calendar days after such notice, the Indemnifying Party may deliver to the Indemnified Party its written acknowledgment that the Indemnified Party is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder indemnification pursuant to this Article IX for Losses arising out of such claim, suit or action, together with evidence reasonably satisfactory to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit Indemnified Party that the Indemnifying Party has and will have the financial capability to discharge any liability arising from such claim, suit or action. Upon receipt by the Indemnified Party of such acknowledgment and evidence, the Indemnifying Party may, with counsel reasonably satisfactory to the Indemnified Party, assume the defense of any such claim suit or action initiated by a third party ("Third Party Claim") including its compromise and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unlesssettlement, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice pay all costs and expenses thereof shall have been given to the Indemnifying Party and shall be deemed a waiver by fully responsible for the Indemnifying Party of its right to defend such claim or action.
B. outcome thereof. If the Indemnifying Party so assumes the defense of such claim claim, suit or litigationaction, the Indemnifying Party shall take all steps necessary in the defense (i) no compromise or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved thereof may be effected by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement 's consent (except with which shall not be unreasonably withheld) unless the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving sole relief is monetary damages that are paid in full by the claimant or the plaintiff to Indemnifying Party and (ii) the Indemnified Party of a release from all shall have no liability in with respect of such claim to any compromise or litigation.
C. If settlement thereof effected without its consent (which shall not be unreasonably withheld). In the event that the Indemnifying Party does not provide such acknowledgment and evidence, the Indemnified Party shall be entitled to assume the defense of any such claim by a third party or litigation after receipt Third Party Claim at the sole cost and expense of notice from the Indemnified Party Indemnifying Party, with counsel reasonably satisfactory to do sothe Indemnifying Party; and in such event, all Losses, disbursements and other costs and expenses (including, without limitation, reasonable attorneys' fees) of such contest shall be subject to the indemnification provisions of this Article IX. In such case, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless will give the Indemnifying Party shall deposit with twenty (20) calendar days' notice of any proposed settlement or compromise of any Third Party Claim, the defense of which such party has assumed. Any settlement or compromise made or caused to be made by the Indemnified Party a sum equivalent to the total amount demanded in of any such claim or litigation plus the Indemnified Party's estimate Third Party Claim of the costs of defending the samekind referred to above, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and shall be binding upon the Indemnifying Party shall promptly reimburse in the Indemnified Party for same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise.
(c) In case of any such Third Party Claim, the Indemnified Party will, upon written request of the Indemnifying Party, cooperate reasonably in the defense thereof, including affording to the Indemnifying Party the right of access, during normal business hours, to pertinent books and records for purposes of inspection and making copies, but all damages reasonable out-of-pocket expenses incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The foregoing shall be reimbursed by the Indemnifying Party. If the Indemnifying Party shall promptly reimburse assumes the defense thereof in accordance with paragraph (b) above, the Indemnified Party for shall maintain the amount of any judgment rendered with respect right to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer thereof and Meritage may to employ counsel, at their option set-off any of Seller's indemnification obligations arising under this Agreement against its own expense, separate from the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns counsel employed by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumParty.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled In the event a Party, including its trustees, officers, directors, employees, Affiliates and other representatives, intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 9.1 or 9.2 hereof (the "INDEMNIFIED PARTYIndemnified Party") ), the Indemnified Party shall promptly give written notice hereunder to the party required to indemnify other Party (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or Proceeding in any action instituted against the Indemnified Party as to which recovery or other action may be sought against the indemnifying party Indemnified Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 9.1 or 9.2 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided thatwith counsel reasonably acceptable to the Indemnified Party (such acceptance not to be unreasonably withheld, Buyer delayed or Meritage mayconditioned); provided, in their discretionhowever, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder with respect to or Proceeding which, if not first paid, discharged or otherwise complied with, would result in a material interruption or disruption of the business of the Indemnified Party, or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 twenty (20) days after written notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. . If the Indemnifying Party assumes the defense of such claim claim, investigation or litigationProceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall take include taking all steps necessary in the defense or settlement of such claim claim, investigation or litigation, Proceeding and will hold holding the Indemnified Party harmless from and against any and all damages caused by Losses arising from, in connection with or arising out of incident to any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim claim, investigation or litigationProceeding, except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnifying Party shall not, in the defense of such claim or any litigation Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any violation of Applicable Law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party or are Losses which does not are or may be properly applied in full by the Indemnifying Party against the Basket Amount, and (iii) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability Liability in respect of to such claim or litigation.
C. . If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim, but solely by observation and comment to the Indemnifying Party, and the counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party, or (ii) the Indemnifying Party's legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party, but in no event shall the Indemnifying Party be obligated to pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action or Proceeding in any one jurisdiction. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom within twenty (20) days after receipt of notice from the 56 Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost (including attorneys' fees) of defending the same, the Indemnified Party may settle such claim or litigation Proceeding on such terms as it may reasonably deem appropriate and the Indemnifying Party shall shall, subject to its defenses and the applicability of any remaining Basket Amount provided for in Section 9.1(a) hereof, promptly reimburse the Indemnified Party for the amount of such settlement and for all reasonable costs (including attorneys' fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim, investigation or litigation, or if any such claim or litigation.
D. The litigation is not so settled, the Indemnifying Party shall shall, subject to its defenses and the applicability of any remaining Basket Amount provided for in Section 9.1(a) hereof, promptly reimburse the Indemnified Party for the amount of any final nonappealable judgment rendered with respect to any claim or litigation by a third party in such litigation and for all costs (including attorneys' fees), expenses and damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything . Each Party shall cooperate in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, good faith and in all respects with counsel of each Indemnifying Party and its choice and at representatives (including without limitation its expense, participate counsel) in the investigation, negotiation, settlement, trial and/or defense of any such claim or litigation.
F. Buyer Proceedings (and Meritage may at their option set-off any of Seller's indemnification obligations appeal arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amounttherefrom) or any of the Transaction Documents.
G. claim. The parties agree that if the Indemnifying Party fails Parties shall cooperate with each other in any notifications to promptly reimburse the Indemnified Party for the amount and information requests of any valid indemnification claim hereunderinsurers. No individual professional or employee representative of any Person or their respective Affiliates, other than the Indemnifying Party Shareholders, shall be entitled personally liable for any Loss or Losses under this Agreement, except as specifically agreed to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumby said individual representative.
Appears in 1 contract
Procedure for Indemnification. A. The party which procedure to be followed in connection with any claim for indemnification by Buyer Indemnified Persons under Section 8.1(b) or by the Sellers under Section 8.1(c) is set forth below:
(i) A Person that may be entitled to be indemnified hereunder indemnification pursuant to Section 8.1(b) or 8.1(c) (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give written notice hereunder (a "Notice of Claim") to the party required to indemnify liable for such indemnification (the "INDEMNIFYING PARTYIndemnifying Party"). A Notice of Claim shall set forth (A) a description, in reasonable detail, of the facts and circumstances with respect to the subject matter of such Indemnity Claim or potential Indemnity Claim, and (B) the anticipated total amount of the Indemnity Claim (including any costs or expenses which have been or may be reasonably incurred in connection therewith). Upon receipt of a Notice of Claim, the Indemnifying Party may elect to cure the circumstances giving rise to the Indemnity Claim within thirty (30) days after obtaining the date of receipt of the Notice of Claim. If such cure cannot be effected within such 30-day period, payment of the amount of Damages due to the Indemnified Party as set forth in the Notice of Claim shall be made by Indemnifying Party no later than the thirtieth (30th) day after the date of the Notice of Claim (or such later date as the Indemnifying Party receives written notice that the Indemnified Party has suffered Damages). The Indemnified Party's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense (in whole or in part) to any Indemnity Claim by the Indemnified Party against the Indemnifying Party, except and only to the extent that such failure shall have caused or increased such liability or adversely affected the ability of the Indemnifying Party to defend against or reduce its liability.
(ii) If the Indemnifying Party shall reject any Damages as to which a Notice of Claim is sent by the Indemnified Party, the Indemnifying Party shall give written notice of such rejection to the Indemnified Party within thirty (30) days after the date of receipt of the Notice of Claim.
(iii) If any Notice of Claim relates to any claim as to which recovery may be sought made against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of an Indemnified Party by a third partyPerson, the Notice of Claim shall permit state the nature, basis and amount of such claim. The Indemnifying Party shall have the right, at its election, by written notice to the Indemnified Party, to assume the defense of any the claim as to which such notice has been given. Except as provided in the next sentence, if the Indemnifying Party so elects to assume such defense, it shall diligently and in good faith defend such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, shall keep the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give reasonably informed of the status of such noticedefense, or delay by an and the Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of shall cooperate fully with the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefromclaim, consent to entry provided that in the case of any judgment (settlement providing for remedies other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Partymonetary damages for which indemnification is provided, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim shall have the right to approve the settlement, which approval shall not be unreasonably withheld or litigation.
C. delayed. If the Indemnifying Party does not assume the defense of so elect to defend any such claim by a third party as aforesaid or litigation shall fail to defend any claim diligently and in good faith (after receipt of notice from the Indemnified Party to do sohaving so elected), the Indemnified Party may defend against assume the defense of such claim or litigation in and take such manner other action as it deems appropriatemay elect to defend or settle such claim as it may determine in its reasonable discretion, and unless provided that the Indemnifying Party shall deposit with have the Indemnified Party a sum equivalent right to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of approve any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claimsettlement, which interest shall accrue at a rate of [ * ] per annumapproval will not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (G Iii Apparel Group LTD /De/)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided thatPROVIDED THAT, Buyer Parent or Meritage Buyers may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is Sellers are responsible hereunder with respect to any lots, land, rights to purchase lots or land, incomplete project or subdivision within the Owned Real Propertypurchased by Buyers from Sellers. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.by
B. If the Indemnifying Party assumes the defense of such claim or litigationlitigation resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim shall take include taking all steps necessary in the defense or settlement of such claim or litigation, litigation and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation. Anything in this Section 3 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
C. If the Indemnifying Party does shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the such Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (i) An Indemnified Party shall give written notice (the "INDEMNIFIED PARTYClaim Notice") shall promptly give notice hereunder of any Claim for indemnification under this Section 8 to the party required to indemnify LDIG Indemnifying Parties or the AEI Indemnifying Parties, as appropriate (the each an "INDEMNIFYING PARTYIndemnifying Party") reasonably promptly after obtaining written notice the assertion against an Indemnified Party of any claim as to which recovery may be sought against the indemnifying by a third party because of the indemnity in Section 1 and Section 2 hereof and(a "Third Party Claim") or, if such indemnity shall arise from the claim Claim is not in respect of a third partyThird Party Claim, shall permit reasonably promptly after the Indemnifying discovery of facts on which the Indemnified Party intends to assume the defense of any such claim and any litigation resulting from such claimbase a Claim for indemnification pursuant to Section 8; provided, provided however, that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expensesubject to Section 8.4(i), the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of so notify the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to not relieve the Indemnifying Party of any obligation or liability that the Indemnifying Party may have to the Indemnified Party except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party's ability to defend or resolve such Claim is adversely affected thereby. Any such Claim Notice shall describe the facts and circumstances on which the asserted Claim for indemnification is based and the basis for the determination of the amount which the Indemnified Party intends to recover. If the Indemnified Party is any of the AEI Indemnified Parties, once either the AEI Shareholder Representative or the Remaining AEI Shareholders have given LDIG notice of a Claim under this Section 8.5, thereafter the AEI Shareholder Representative shall, subject to Section 8.5(iii), make all decisions regarding the settlement or resolution of such Claim by and on behalf of the Indemnified Party, and the Indemnifying Party may rely conclusively upon the power and authority of the AEI Shareholder Representative to receive notices with respect to, and to take actions binding upon, the Remaining AEI Shareholders as an Indemnified Party. For purposes of providing notice to the Remaining AEI Shareholders when such persons are Indemnifying Parties under Section 8.2(ii), notice to the AEI Shareholder Representative shall be deemed a waiver sufficient.
(ii) If, within 30 days of the receipt by the Indemnifying Party of its right a Claim Notice, the Indemnifying Party contests in writing to defend the Indemnified Party that Losses identified in such claim Claim Notice constitute disputed Claims (the "Contest Notice"), then the Indemnified Party and the Indemnifying Party, acting in good faith, shall attempt to reach agreement with respect to the contested portions of such Claims. Unless a Claim is contested within such 30-day period, the Indemnified Party shall, subject to the other terms of this Section 8, be obligated to settle the amount of the Losses related to such Claim or action.
B. the uncontested portion thereof in accordance with the provisions of Section 8.4. The Indemnifying Party shall not object to any Claim unless (A) it believes in good faith that the Indemnified Party is not entitled to be indemnified with respect to the Losses specified therein or (B) it lacks sufficient information to assess the validity or amount of the Claim. If the Indemnifying Party assumes objects to a Claim on the defense basis that it lacks sufficient information, it shall promptly request from the Indemnified Party any additional information reasonably necessary for it to assess such Claim and the Indemnified Party shall, to the extent the Indemnified Party reasonably can, provide additional information reasonably requested. Upon receipt of such claim or litigationadditional information, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, review it as soon as reasonably practicable and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to notify the Indemnified Party of a release from all liability in respect any withdrawal or modification of such claim or litigation.
C. the objection. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered are unable to reach agreement with respect to any claim or litigation by a third party in such litigation and for all damage incurred by contested Claims within 45 days of the Indemnified Party in connection with delivery of the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect toContest Notice, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party matter shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.settled by binding arbitration
Appears in 1 contract
Procedure for Indemnification. A. The Promptly after receipt by an indemnified party which ("Indemnified Party") under Section 10.2 of notice of the commencement of any action, such Indemnified Party shall, if a claim in respect thereof is entitled to be indemnified hereunder made against an indemnifying party (the "INDEMNIFIED PARTYIndemnifying Party") shall promptly under such section, give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party of the commencement thereof, but the failure so to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of notify the Indemnifying Party shall not relieve it of any liability that it may have been prejudiced as a result of to any Indemnified Party except to the failure to give, or delay in giving, such notice. Failure by an extent the Indemnifying Party to notify demonstrates that the defense of such action is prejudiced thereby. In case any such action shall be brought against an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after and it shall give notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereundercommencement thereof, the Indemnifying Party shall be entitled to interest on participate therein and, to the amount extent that it shall wish, to assume the defense thereof with counsel reasonably satisfactory to such Indemnified Party and, after notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such section for any fees of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party in connection with the defense thereof, other than reasonable costs of investigation. If an Indemnifying Party assumes the defense of such claiman action, (a) no compromise or settlement thereof may be effected by the Indemnifying Party without the Indemnified Party's consent unless (i) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and (b) the Indemnifying Party shall have no liability with respect to any compromise or settlement thereof effected without its consent (which interest consent will not be unreasonably withheld). If notice is given to an Indemnifying Party of the commencement of any action and it does not, within ten (10) days after the Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense thereof, the Indemnifying Party shall accrue at be bound by any determination made in such action or any compromise or settlement thereof effected by the Indemnified Party. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a rate reasonable probability that an action may adversely affect it or its affiliates other than as a result of [ * ] per annummonetary damages, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall not be bound by any determination of an action so defended or any compromise or settlement thereof effected without its consent (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, any determination with respect to the Company's determination to make a claim for indemnification against the Contributing Entities shall be made solely by a majority of the Independent Directors.
Appears in 1 contract
Sources: Acquisition Agreement (Mission West Properties/New/)
Procedure for Indemnification. A. The party which is entitled (a) If any claim or proceeding covered by Section 15 to be indemnified hereunder indemnify and hold harmless shall arise, the Party who seeks indemnification (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give written notice hereunder thereof to the party required to indemnify other Party (the "INDEMNIFYING PARTYIndemnitor") promptly but in no event more than ten (10) days after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because Indemnified Party learns of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim existence of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any proceeding. Any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected accompanied by any failure evidence demonstrating the Indemnified Party's right or possible right to indemnification, including a copy of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to all supporting documents relevant thereto. After the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of Indemnitor acknowledges its election obligation to defend against or settle any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigationproceeding, the Indemnifying Party Indemnitor shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff be liable to the Indemnified Party of a release from all liability in respect of such claim under this Section 15 for any legal or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that the Indemnified Party shall have the right to employ counsel to represent it if, in the Indemnified Party's sole judgment, it is advisable for the Indemnified Party to be represented by separate counsel, in which event the reasonable fees and expenses of such separate counsel shall be paid by the Indemnified Party. The Parties shall fully cooperate in the defense of each claim or proceeding and shall make available to each other all books or records necessary or appropriate for such defense.
(b) The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against the claim or proceeding or to compromise, settle or otherwise dispose of the same; provided, however, that no settlement or compromise shall be effected without the express prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; and, provided further, that if the Indemnified Party does not consent to a BONA FIDE offer of settlement made by a third party and the settlement involves only the payment of money, then the Indemnitor may, in lieu of payment of that amount to such third party, pay that amount to the Indemnified Party. After such payment to the Indemnified Party, the Indemnitor shall have no further liability with respect to that claim or proceeding and the Indemnified Party shall assume full responsibility for the defense, payment or settlement of such claim or litigationproceeding.
D. The Indemnifying Party shall promptly reimburse (c) If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle any claim or proceeding within twenty (20) days after receiving notice of the claim or proceeding from the Indemnified Party for (or such shorter time specified in the amount notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any judgment rendered way that the Indemnified Party deems in its best interest, subject to the Indemnitor's right subsequently to contest through appropriate proceedings its obligation to provide indemnification.
(d) The Indemnitor shall be subrogated to all rights of the Indemnified Party against any third party with respect to any claim or litigation by a third party in such litigation and for all damage incurred which indemnification is paid by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 Indemnitor to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount extent of such claim, which interest shall accrue at a rate of [ * ] per annumpayment.
Appears in 1 contract
Sources: Exchange Agreement (Chancellor Broadcasting Licensee Co)
Procedure for Indemnification. A. (a) The party which is entitled to be indemnified hereunder Indemnified Party shall give written notice (the "INDEMNIFIED PARTYCLAIM NOTICE") shall promptly give notice hereunder of any Claim to the indemnifying party required as promptly as practicable, but in any event: (i) if such Claim relates to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice assertion against an Indemnified Party of any claim as by a third party (a "THIRD PARTY CLAIM"), within 30 days after the assertion of such Third Party Claim, or (ii) if such Claim is not in respect of a Third Party Claim, within 30 days after the discovery of facts upon which the Indemnified Party intends to which recovery may be sought against base a Claim for indemnification pursuant to Article V hereof; provided, however, that the failure or delay to so notify the indemnifying party because shall not relieve the indemnifying party of any obligation or liability that the indemnity in Section 1 indemnifying party may have to the Indemnified Party except to the extent that the indemnifying party demonstrates that the indemnifying parties' ability to defend or resolve such Claim is adversely affected thereby. Any such Claim Notice shall describe the facts and Section 2 hereof circumstances on which the asserted Claim for indemnification is based, the amount thereof if then ascertainable and, if such indemnity not then ascertainable, the estimated maximum amount thereof, and the provisions in the Agreement on which the Claim is based.
(i) Subject to the rights of or duties to any insurer or other third party having potential liability therefor, the indemnifying party shall arise have the right, upon written notice given to the Indemnified Party within 30 days after receipt of the notice from the claim Indemnified Party of a third partyany Third Party Claim, shall permit the Indemnifying Party to assume the defense or handling of any such claim and any litigation resulting from such claimThird Party Claim, provided that, Buyer or Meritage mayat the indemnifying party's sole expense, in their discretion, undertake, at Seller's cost and expense, which case the defense provisions of any claim for which Seller is responsible hereunder with respect Section 5.5(b)(ii) hereof shall govern.
(ii) The indemnifying party shall select counsel reasonably acceptable to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in connection with conducting the defense or settlement handling of such claim or litigationThird Party Claim, and will hold the indemnifying party shall defend or handle the same in consultation with the Indemnified Party harmless from and against any and all damages caused by or arising out shall keep the Indemnified Party timely apprised of any settlement approved by the Indemnifying status of such Third Party or any judgment in connection with such claim or litigationClaim. The Indemnifying Party indemnifying party shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified Party, agree to a settlement of any Third Party Claim, unless (A) the settlement provides an unconditional release and discharge of the Indemnified Party and the Indemnified Party is reasonably satisfied with such discharge and release and (B) the Indemnified Party shall not have reasonably objected to any such settlement on the ground that the circumstances surrounding the settlement could result in an adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or enter into any settlement otherwise), condition (except with the written consent financial or otherwise) or prospects of the Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense.
(i) which If the indemnifying party does not include as an unconditional term thereof the giving by the claimant or the plaintiff give written notice to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation within 30 days after receipt of the notice from the Indemnified Party of any Third Party Claim of the indemnifying party's election to do soassume the defense or handling of such Third Party Claim, the provisions of Section 5.5(c)(ii) hereof shall govern.
(ii) The Indemnified Party may may, at the indemnifying party's expense (which shall be paid from time to time by the indemnifying party as such expenses are incurred by the Indemnified Party), select counsel in connection with conducting the defense or handling of such Third Party Claim and defend against or handle such claim or litigation Third Party Claim in such manner as it deems may deem appropriate; provided, and unless however, that the Indemnifying Indemnified Party shall deposit keep the indemnifying party timely apprised of the status of such Third Party Claim and shall not settle such Third Party Claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the indemnifying party shall cooperate with the Indemnified Party a sum equivalent and shall be entitled to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount handling of such claim, which interest shall accrue Third Party Claim with its own counsel and at a rate of [ * ] per annumits own expense.
Appears in 1 contract
Sources: Merger Agreement (Shopnow Com Inc)
Procedure for Indemnification. A. The party (a) Within 30 days after the incurrence of any losses by any Person entitled to indemnification pursuant to Section 7.4 hereof (an “Indemnified Party”), including any Claim by a third Person described in Section 7.6, which might give rise to indemnification hereunder, the Indemnified Party shall deliver to the Party from which indemnification is sought (the “Indemnifying Party”) a certificate (the “Certificate”), which Certificate shall:
(i) state that the Indemnified Party has paid or properly accrued losses or anticipates that it will incur liability for losses for which such Indemnified Party is entitled to be indemnified hereunder indemnification pursuant to this Agreement; and
(ii) specify in reasonable detail each individual item of loss included in the "INDEMNIFIED PARTY") shall promptly give notice hereunder to amount so stated, the party required to indemnify (date such item was paid or properly accrued, the "INDEMNIFYING PARTY") after obtaining written notice basis for any anticipated liability and the nature of any the misrepresentation, breach of warranty, breach of covenant or claim as to which recovery may be sought against each such item is related and the indemnifying party because computation of the indemnity in Section 1 and Section 2 hereof and, if amount to which such indemnity shall arise from Indemnified Party claims to be entitled hereunder.
(b) In the claim of a third party, shall permit event that the Indemnifying Party shall object to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party in respect of any claim or claims specified in any Certificate, the Indemnifying Party shall, within ten days after receipt by the Indemnifying Party of such Certificate, deliver to give such notice, or delay by an the Indemnified Party a notice to such effect and the Indemnifying Party and the Indemnified Party shall, within the thirty (30) day period beginning on the date of receipt by the Indemnified Party of such objection, attempt in giving such notice, unless, and then only good faith to the extent that, agree upon the rights and remedies of the respective parties with respect to each of such Claims to which the Indemnifying Party shall have been prejudiced as a result of so objected. If the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to and the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right succeed in reaching agreement on their respective rights with respect to defend such claim or action.
B. If the Indemnifying Party assumes the defense any of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soClaims, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then the Indemnified Party and the Indemnifying Party shall submit such dispute for arbitration in accordance with Section 7.12. The Party which receives a final judgment in such dispute shall be indemnified and held harmless for all reasonable attorney and consultant’s fees or expenses by the other Party.
(c) Claims for losses specified in any Certificate to which an Indemnifying Party shall not object in writing within ten (10) days of receipt of such Certificate, Claims for losses the validity and amount of which have been the subject of arbitration as described in Section 7.5(b) and Claims for losses the validity and amount of which shall have been the subject of a final arbitration, or shall have been settled with the consent of the Indemnifying Party, as described in Section 7.6 below, are hereinafter referred to, collectively, as “Agreed Claims”. Within ten days of the determination of the amount of such settlement and for all damages incurred any Agreed Claims, the Indemnifying Party shall pay to the Indemnified Party an amount equal to the Agreed Claim by wire transfer in immediately available funds to the bank account or accounts designated by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect a notice to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails not less than two Business Days prior to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumpayment.
Appears in 1 contract
Sources: Purchase Agreement
Procedure for Indemnification. A. The Any notice of a claim for indemnification under Section 8.2 or 8.3 (which shall be given as promptly as possible) shall state with reasonable specificity the provision(s) of this Agreement with respect to which the claim is made, the facts giving rise to the claim, and if ascertainable, the amount of the liability asserted by reason of the claim. Promptly after receipt by an indemnified party which under Section 8.2 or 8.3 of notice of the commencement of any legal action, the indemnified party shall, if a claim in respect of the action is entitled to be indemnified hereunder (made against an indemnifying party under Section 8.2 or 8.3, as the "INDEMNIFIED PARTY") shall promptly case may be, give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity commencement of the action, but a failure to so notify the indemnifying party shall not relieve it of any liability it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of the action is prejudiced by the delay (it being understood that any notice of claim for misrepresentation or breach of warranty must be given within the applicable time period set forth in Section 1 8.1). In case any such action shall be brought against an indemnified party and Section 2 hereof it shall give notice to the indemnifying party of the commencement of the action, the indemnifying party shall be entitled to participate in the action and, if such indemnity to the extent that it shall arise from the claim of a third partywish, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder action with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only counsel reasonably satisfactory to the extent that, indemnified party. If the rights and remedies of indemnifying party notifies the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party indemnified party of its election so to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soaction, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, indemnifying party shall control the defense of the action and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent not be liable to the total amount demanded indemnified party under Section 8.2 or 8.3, as the case may be, for any fees of other counsel or any other expenses, in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages each case subsequently incurred by the Indemnified Party indemnified party in connection with the defense against of the action (it being understood, however, that the indemnified party shall be entitled to participate in the action at its own cost and expense). If an indemnifying party assumes the defense of an action, no compromise or settlement of such claim the action may be effected by the indemnifying party without the indemnified party’s consent, unless (a) there is no finding or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount admission of any judgment rendered with respect to violation of law and no effect on the business of the indemnified party and on any other claim or litigation by a third party that may be made against the indemnified party, and (b) the sole relief provided is monetary damages that are paid in such litigation and for all damage incurred full by the Indemnified Party in connection with indemnifying party. If notice is given to an indemnifying party of the defense against such claim or litigationcommencement of any action and it does not, whether or not resulting fromwithin ten days after the indemnified party’s notice is given, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 give notice to the contrary notwithstanding, the indemnified party not primarily responsible for of its election to assume the defense of a claim or litigation maythe action, the indemnified party may assume the defense of the action and the indemnifying party shall be bound by any determination made in such action. The parties shall cooperate with counsel of its choice and at its expense, participate each other in the defense of any such claim or litigationthird party claims described in this Section 8.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Share Purchase and Asset Transfer Agreement (Luna Innovations Inc)
Procedure for Indemnification. A. The party which procedure to be followed in connection with any claim for indemnification by Buyer Indemnified Person under Section 8.02 or by the Seller under Section 8.03 (an “Indemnity Claim”) is set forth below:
(a) A Person that may be entitled to be indemnified hereunder indemnification pursuant to Section 8.02 or Section 8.03 (the "INDEMNIFIED PARTY"“Indemnified Party”) shall promptly give written notice hereunder (a “Notice of Claim”) to the party required to indemnify liable for such indemnification (the "INDEMNIFYING PARTY"“Indemnifying Party”). A Notice of Claim shall set forth (A) after obtaining written notice a description, in reasonable detail, of the facts and circumstances with respect to the subject matter of such Indemnity Claim or potential Indemnity Claim, and (B) the anticipated total amount of the Indemnity Claim (including any claim as to costs or expenses which recovery have been or may be sought reasonably incurred in connection therewith). The Indemnified Party’s failure to give prompt notice shall not constitute a defense (in whole or in part) to any Indemnity Claim by the Indemnified Party against the indemnifying party because Indemnifying Party, except and only to the extent that such failure shall have caused or increased such liability or adversely affected the ability of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume defend against or reduce its liability.
(b) If the defense Indemnifying Party shall reject any Damages as to which a Notice of Claim is sent by the Indemnified Party, the Indemnifying Party shall give written notice of such rejection to the Indemnified Party within thirty (30) days after the date of receipt of the Notice of Claim. If no rejection is provided by the Indemnifying Party within such thirty (30) day period, the Indemnifying Party shall pay to the Indemnified Party within thirty (30) days the Damages set forth in such Notice of Claim.
(c) If any Indemnified Party receives notice of the assertion or commencement of any such claim and action made or brought by any litigation resulting from such claim, provided that, Buyer Person who is not a party to this Agreement or Meritage may, in their discretion, undertake, at Seller's cost and expense, an Affiliate of a party to this Agreement or a representative of the defense of any claim for which Seller is responsible hereunder foregoing (a “Third Party Claim”) against the Indemnified Party with respect to any lots, land, rights which the Indemnifying Party is obligated to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoingprovide indemnification under this Agreement, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party shall give the Indemnifying Party reasonably prompt written notice, but in any event not later than thirty (30) days after receipt of the notice of the Third Party Claim. The failure to give such noticeprompt written notice shall not, or delay by an Indemnified however, relieve the Indemnifying Party in giving such noticeof its indemnification obligations, unlessunless the Indemnifying Party was prejudiced thereby, and then only to the extent thatof such prejudice. The notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the rights estimated amount, if reasonably practicable, of the loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall forthwith have the option to assume the Good Faith Defense (as defined below) of such Third Party Claim at its own expense, provided, that the Indemnified Party may retain its own counsel at the Indemnified Party’s expense. The Indemnified Party may elect at any time to assume the defense of the Third Party Claim upon written notice to the Indemnifying Party, which assumption shall be at the expense of the Indemnified Party unless the Indemnifying Party has not assumed the Good Faith Defense, and remedies the Indemnified Party may settle or compromise such defense with the consent of the Indemnifying Party which consent shall have been prejudiced as a result not be unreasonably withheld or delayed. By virtue of the failure Indemnifying Party’s assumption of the Good Faith Defense of a Third Party Claim, the parties shall be deemed to give, or delay in giving, have agreed as follows: (x) all claims made pursuant to such notice. Failure by an Third Party Claim are completely within the scope of and subject to indemnification and will be the sole and exclusive liability and responsibility of the Indemnifying Party subject to notify an the limits and terms of this ARTICLE VIII; (y) no compromise or settlement of such claims or action may be effected by the Indemnifying Party without the Indemnified Party’s consent which consent shall not be unreasonably withheld or delayed; and (z) the Indemnified Party will have no liability or adverse consequence with respect to any compromise or settlement of its election to defend any such claim claims or action effected without the Indemnified Party’s consent which consent shall not be unreasonably withheld or delayed. For purposes hereof, “Good Faith Defense” means legal defense conducted by reputable counsel of good standing, which consent shall not be unreasonably withheld or delayed. If a third party Good Faith Defense is not commenced within 10 thirty business days after following receipt of notice thereof shall have been given of the Third Party Claim from the Indemnified Party (or such shorter period, if any, during which a defense must be commenced in order for the defendant to preserve its rights), the Indemnifying Party shall be deemed to have waived its option to assume the Good Faith Defense with respect thereto. The parties shall provide such cooperation and such access to their books, records and properties as any party shall reasonably request with respect to such matter; and the parties hereto agree to cooperate with each other in all reasonable respects in order to help ensure the proper and adequate defense thereof and in furtherance of seeking a waiver mutually acceptable solution. With regard to Third Party Claims for which indemnification is due and owing hereunder, such indemnification shall be paid by the Indemnifying Party upon the earliest to occur of: (a) the entry of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense a judgment of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement a court of such claim or litigation, and will hold competent jurisdiction against the Indemnified Party harmless from and against any and all damages caused by or arising out the expiration of any settlement approved by applicable appeal period; (b) the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a an nonappealable judgment of dismissal on a court of competent jurisdiction against the merits without costsIndemnified Party; or (c) except a settlement of the Third Party Claim with the mutual written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate Buyer and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigationSeller.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Stock Purchase Agreement (Consolidated Water Co LTD)
Procedure for Indemnification. A. The party (a) Within a reasonable period of time after the incurrence of any Losses by any Person entitled to indemnification pursuant to Section 14.1 or Section 14.2 hereof or any other provision of this Agreement (an “Indemnified Party”), including any Claim by a third Person described in Section 14.4, which might give rise to indemnification hereunder, the Indemnified Party shall deliver to the Party from which indemnification is sought (the “Indemnifying Party”) a certificate (the “Certificate”), which Certificate shall:
(i) state that the Indemnified Party has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnified Party is entitled to indemnification pursuant to this Agreement;
(ii) specify in reasonable detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated Liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be indemnified hereunder entitled hereunder; and
(the "INDEMNIFIED PARTY"iii) shall promptly give notice hereunder be delivered to the party required to indemnify Indemnifying Party.
(b) In the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit event that the Indemnifying Party shall object to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party in respect of any Claim or Claims specified in any Certificate, the Indemnifying Party shall, within 10 days after receipt by the Indemnifying Party of such Certificate, deliver to give such notice, or delay by an the Indemnified Party a notice to such effect and the Indemnifying Party and the Indemnified Party shall, within the 30 day period beginning on the date of receipt by the Indemnified Party of such objection, attempt in giving such notice, unless, and then only good faith to the extent that, agree upon the rights and remedies of the respective parties with respect to each of such Claims to which the Indemnifying Party shall have been prejudiced as a result of so objected. If the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to and the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right succeed in reaching agreement on their respective rights with respect to defend such claim or action.
B. If the Indemnifying Party assumes the defense any of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soClaims, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then the Indemnified Party and the Indemnifying Party shall submit such dispute for arbitration in accordance with Section 18.1. The Party which receives a final judgment in such dispute shall be indemnified and held harmless for all reasonable legal and consultant’s fees or expenses by the other Party.
(c) Claims for Losses specified in any Certificate to which an Indemnifying Party shall not object in writing within 10 days of receipt of such Certificate, Claims for Losses the validity and amount of which have been the subject of agreement as described in Section 14.3(b) and Claims for Losses the validity and amount of which shall have been the subject of a final arbitration, or shall have been settled with the consent of the Indemnifying Party, as described in Section 14.4 below, are hereinafter referred to, collectively, as “Agreed Claims”. Within 10 Business Days of the determination of the amount of such settlement and for all damages incurred any Agreed Claims, the Indemnifying Party shall pay to the Indemnified Party an amount equal to the Agreed Claim by wire transfer in immediately available funds to the bank account or accounts designated by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect a notice to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails not less than 2 Business Days prior to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumpayment.
Appears in 1 contract
Sources: Transition and Asset Purchase Agreement (Mohegan Tribal Gaming Authority)
Procedure for Indemnification. A. The party Subject to Section 7.1, all claims for indemnification under this Article VII or under Section 5.11 or 5.12 shall be asserted and resolved as follows:
(a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an Indemnifying Party may be liable to an Indemnified Party hereunder is entitled asserted against or sought to be indemnified hereunder collected by a third party (an "ASSERTED LIABILITY"), the Indemnified Party shall as soon as reasonably possible notify the Indemnifying Party in writing of such Asserted Liability, specifying the nature of such Asserted Liability (the "INDEMNIFIED PARTYCLAIM NOTICE") shall promptly give notice hereunder to ); PROVIDED, that no delay on the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because part of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving any such notice, unless, and then only Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder except to the extent thatthat the Indemnifying Party is materially prejudiced by such delay. The Indemnifying Party shall have thirty (30) days (or less if the nature of the Asserted Liability requires) from its receipt of the Claim Notice (the "NOTICE PERIOD") to notify the Indemnified Party whether the Indemnifying Party desires, at the rights Indemnifying Party's sole cost and remedies expense and by counsel reasonably acceptable to the Indemnified Party to defend against such Asserted Liability; PROVIDED, that (i) if, under applicable standards of professional conduct a conflict on any significant issue between the Indemnifying Party and any Indemnified Party exists in respect of such Asserted Liability, or (ii) the Indemnifying Party shall have been prejudiced as a result of reimburse the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party for the reasonable fees and expenses of its election to defend any such claim or action by a third party within 10 days after notice thereof one additional counsel (who shall have been given be reasonably acceptable to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationParty). The Indemnifying Party shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld), or enter into consent to any settlement unless such settlement (except i) includes a complete release of the Indemnified Party and (ii) does not require the Indemnified Party to make any payment or forego or take any action. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability which the Indemnifying Party shall have undertaken to defend so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall cooperate fully with the written consent Indemnifying Party and its counsel in the investigation, defense and settlement thereof, but the Indemnifying Party shall control the investigation, defense and settlement thereof. If the Indemnified Party is controlling the defense of any Asserted Liability in accordance with this Section 7.4 (i) at the request of the Indemnified Party) which does not include as an unconditional term thereof , the giving by the claimant or the plaintiff Indemnifying Party will at its own cost and expense provide reasonable cooperation to the Indemnified Party and its counsel in defending the Asserted Liability and (ii) the Indemnifying Party shall have the right to participate in any such defense at its sole cost and expense, but the Indemnified Party shall control the investigation, defense and settlement thereof at the reasonable cost and expense of the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability effected without its prior written consent (which consent shall not be unreasonably withheld).
(b) In the event that an Indemnified Party should have a release claim against the Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from all liability in it by a third party, the Indemnified Party shall send a Claim Notice with respect of to such claim to the Indemnifying Party. The Indemnifying Party shall have thirty (30) days from the date such Claim Notice is delivered during which to notify the Indemnified Party in writing of any good faith objections it has to the Indemnified Party's Claim Notice or litigation.
C. claims for indemnification, setting forth in reasonable detail each of the Indemnifying Party's objections thereto. If the Indemnifying Party does not assume deliver such written notice of objection within such 30-day period, the defense of any such claim by a third party or litigation after receipt of notice from Indemnifying Party and the Indemnified Party shall attempt in good faith to do so, resolve any such dispute within thirty (30) days of the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless delivery by the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent of such written notice of objection.
(c) With respect to the total amount demanded in such claim or litigation plus the liabilities for which Parent shall be required to provide indemnification pursuant to Section 7.3(a)(i) resulting from a breach of Section 3.16, CS Indemnified Party's estimate Parties shall cooperate with Parent, provide Parent as promptly as possible with all relevant materials, information and data requested by Parent and shall grant Parent, without charge, reasonable access to employees and premises of the costs Beverage Companies, including the right to conduct environmental tests thereon and to take samples therefrom.
(d) CS and Merger Subs acknowledge that except for rights of defending the samespecific performance expressly described herein, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate indemnification provisions contained in this Article VII and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement in Article VIII and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered Sections 5.11 and 5.12 constitute CS's and Merger Subs' sole remedy with respect to any claim of the matters arising out of or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with this Agreement, the defense against such Disclosure Schedule or any Exhibit hereto. Each of CS and Merger Subs acknowledges and agrees that: (i) CS and its representatives have the experience and knowledge to evaluate the business, financial condition, assets and liabilities of the Beverage Companies; and (ii) in determining to effect the Mergers and acquire Merging Companies as Subsidiaries, CS has made its own investigation into, and based thereon CS has formed an independent judgment concerning, Merging Companies and the underlying assets and liabilities of the Beverage Companies (including the real property, fixtures and the tangible personal property). CS and Merger Subs hereby waive, release and agree not to make any claim or litigationbring any contribution, whether cost recovery or not resulting fromother action against Merging Companies, arising out ofits Affiliates, and, if applicable, their respective directors, officers, shareholders, partners, attorneys, accountants, agents and employees and their heirs, successors and assigns, under the Environmental Laws, common law, or incurred with respect toany similar federal, the act of a third party.
E. Anything in state or local environmental law or regulation now existing or hereafter enacted other than for Losses which Parent is expressly required to indemnify CS under this Section 3 to the contrary notwithstanding, the party Article VII. CS and Merger Subs agree that they will not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of bring any such claim or litigation.
F. Buyer action under any Environmental Laws or any other environmental law or regulation which seeks to allocate liabilities between CS and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against Merger Subs, on the Future Land Profit component of one hand, and Parent, on the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In additionother hand, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at in a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, different manner than as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to expressly set forth in this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY"a) shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of If any claim is asserted against a Purchaser Indemnified Party or Seller Indemnified Party (an “Indemnified Party”) as to which recovery an Indemnified Party may be entitled to indemnification hereunder (a “Claim”), the Indemnified Party shall notify the party or parties from which indemnification is sought against (the indemnifying party because “Indemnifying Party”) of the indemnity commencement of such Claim. Such notice shall be in Section 1 writing and Section 2 hereof andshall be given within ten (10) days after receipt by the Indemnified Party of notice of the Claim, if and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such indemnity shall arise from claim and the claim amount of a third partyDamages claimed; provided, shall permit however, that no delay or failure on the part of the Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligation hereunder, except to the extent of any material prejudice actually caused by or arising from such delay or failure. Within twenty (20) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of the Claim, with counsel reasonably satisfactory to the Indemnified Party; provided that:
(i) the Indemnifying Party may only assume control of such defense if:
(A) it acknowledges in writing to the Indemnified Party that any Damages, fines, costs or other liabilities which may be assessed against the Indemnified Party in connection with such Claim constitute Damages for which the Indemnified Party shall be indemnified by the Indemnifying Party pursuant to this Article 13, and
(B) the ad damnum of the Claim is less than or equal to the amount of Damages for which the Indemnifying Party may be liable pursuant to this Article, and
(ii) the Indemnifying Party may not assume control of the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, Claim in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller criminal liability is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such noticeasserted, or delay by an in which equitable relief is sought, against the Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or actionParty.
B. (b) If the Indemnifying Party assumes does not, or is not permitted under the terms hereof to, assume control of the defense of a Claim, the Indemnified Party shall control such defense. Whichever party, whether the Indemnified Party or the Indemnifying Party, does not control the defense of a claim (the “Non-Controlling Party”) may participate in such defense at its own expense. Whichever party, whether the Indemnified Party or the Indemnifying Party controls the defense of a claim (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such Claim and the defense thereof, and shall consider, in good faith, any recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Claim, including copies of any summons, complaint or other pleading which may have been served on such Non-Controlling Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same, and shall otherwise cooperate and assist the Controlling Party in the defense of such claim or litigation, Claim. The expenses and reasonable fees of counsel to the Indemnified Party with respect to a Claim shall be considered Damages for purposes of this Agreement if:
(i) the Indemnified Party controls the defense of such Claim pursuant to the terms of this Section 13.4(b); or
(ii) the Indemnifying Party shall take all steps necessary in the defense or settlement assumes control of such claim or litigation, defense and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or any judgment in connection different defenses available with respect to such claim or litigationClaim. The Indemnifying Party shall notnot agree to any settlement of, in or the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on arising from, any Claim without the merits without costs) except with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or enter into delayed. The Indemnified Party shall not agree to any settlement (except with of, or the entry of any judgment arising from, any such Claim without the prior written consent of the Indemnified Indemnifying Party) , which does consent shall not include as an unconditional term thereof be unreasonably withheld, conditioned or delayed. Notwithstanding the giving by the claimant foregoing, Purchaser or the plaintiff New Operator shall have no obligation to settle or compromise any claim or consent to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount entry of any judgment rendered with respect to any claim or litigation by a third party in such litigation and which indemnification is sought hereunder unless Seller has accepted full responsibility for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or and the terms are not resulting from, arising out of, or incurred with respect to, the act of a third partyprejudicial to Purchaser and/or New Operator.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The If a party which is entitled to be indemnified hereunder hereto seeks indemnification under this Article 8 against another party, such party seeking indemnification (the "INDEMNIFIED PARTY"“Indemnified Party”) shall promptly give written notice hereunder to such other party (the “Indemnifying Party”) of the facts and circumstances giving rise to the claim. If any suit, action, claim, liability or obligation shall be brought or asserted by any third party required to indemnify (the "INDEMNIFYING PARTY"an “Indemnification Proceeding”) after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof andwhich, if such adversely determined, would entitle the Indemnified Party to indemnity shall arise from pursuant to this Article 8, the claim of a third partyIndemnified Party shall, shall permit as promptly as practicable after receiving notice thereof, notify the Indemnifying Party to assume of the defense same in writing, specifying in detail the basis of any such claim and the facts pertaining thereto; provided that the failure to so notify any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder Indemnifying Party shall not be affected by any failure relieve such Indemnifying Party of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only its obligations hereunder except to the extent that, the rights and remedies of the such failure shall have materially prejudiced such Indemnifying Party.
B. The Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes assume and control the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationIndemnification Proceeding. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. . If the Indemnifying Party does not assume has assumed the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soan Indemnification Proceeding as provided in this Section 8.5(B), the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party not be liable for the amount of such settlement and for all damages any legal expenses incurred by the Indemnified Party in connection with the a defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. an Indemnification Proceeding. Anything in this Section 3 8.5 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreementcases, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if Indemnified Party shall cooperate with the Indemnifying Party fails in the defense of claims or litigation, including by making employees, information, and documentation reasonably available. Notwithstanding any provision herein to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereundercontrary, the Indemnifying Party shall be entitled not have the right to interest on the amount assume control of such claimdefense and shall pay the reasonable fees and expenses of one (1) counsel retained by the Indemnified Party, if the claim which interest the Indemnifying Party seeks to assume control (i) seeks non-monetary relief, except where non-monetary relief is incidental to a primary claim or primary claims for monetary damages, (ii) involves criminal or quasi-criminal allegations or (iii) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to diligently prosecute or defend. In the event that the Indemnified Party assumes control of such defense, the Indemnifying Party shall accrue at not be bound by any determination of such matter or any compromise or settlement thereof without the consent of the Indemnifying Party which consent shall not be unreasonably withheld.
C. In the event that the Indemnifying Party does not assume the defense of an Indemnification Proceeding after receipt of written notice from such Indemnified Party, the Indemnified Party may defend against the Indemnification Proceeding in such manner as it deems appropriate. In effecting the settlement of any such Indemnification Proceeding, the Indemnified Party shall act in good faith, shall consult with the Indemnifying Party and shall enter into only such a rate settlement as the Indemnifying Party shall approve (the Indemnifying Party’s approval will be implied if it does not respond within five (5) business days of [ * ] per annumits receipt of the written notice of such a settlement offer).
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Community First Inc)
Procedure for Indemnification. A. The Each party which is entitled to be indemnified hereunder under paragraph (a) or (b) of this SECTION 8 (the "INDEMNIFIED PARTY") shall shall, promptly give after receipt of notice hereunder to of any claim or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought, notify the party required to indemnify provide indemnification (the "INDEMNIFYING PARTY") after obtaining written notice in writing of the claim or the commencement thereof; provided that the failure of the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any claim as liability which it may have to which recovery may be sought against the indemnifying party because an Indemnified Party on account of the indemnity agreement contained in Section 1 paragraph (a) or (b) of this SECTION 8, unless the Indemnifying Party was materially prejudiced by such failure, and Section 2 hereof in no event shall relieve the Indemnifying Party from any other liability which it may have to such Indemnified Party. If any such claim or action shall be brought against an Indemnified Party, it shall notify the Indemnifying Party thereof and the Indemnifying Party shall be entitled to participate therein, and, if such indemnity shall arise from to the claim of a third extent that it wishes, jointly with any other similarly notified indemnifying party, shall permit to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes assume the defense of such claim or litigationaction, the Indemnifying Party shall take all steps necessary in not be liable (except to the defense or settlement of such claim or litigation, and will hold extent the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall notproviso to this sentence is applicable, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costswhich event it will be so liable) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim under this SECTION 8 for any legal or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages other expenses subsequently incurred by the Indemnified Party in connection with the defense against thereof other than reasonable costs of investigation; provided that each Indemnified Party shall have the right to employ separate counsel to represent it and assume its defense (in which case, the Indemnifying Party shall not represent it) if (i) upon the advice of counsel, the representation of both parties by the same counsel would be inappropriate due to actual or settlement potential differing interests between them, or (ii) in the event the Indemnifying Party has not assumed the defense thereof within ten (10) days of receipt of notice of such claim or litigation.
D. The commencement of action, and in which case the fees and expenses of one such separate counsel shall be paid by the Indemnifying Party. If any Indemnified Party employs such separate counsel it will not enter into any settlement agreement which is not approved by the Indemnifying Party, such approval not to be unreasonably withheld. If the Indemnifying Party so assumes the defense thereof, it may not agree to any settlement of any such claim or action as the result of which any remedy or relief, other than monetary damages for which the Indemnifying Party shall promptly be responsible hereunder, shall be applied to or against the Indemnified Party, without the prior written consent of the Indemnified Party. In any action hereunder as to which the Indemnifying Party has assumed the defense thereof with counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall continue to be entitled to participate in the defense thereof, with counsel of its own choice, but, except as set forth above, the Indemnifying Party shall not be obligated hereunder to reimburse the Indemnified Party for the amount costs thereof. If the indemnification provided for in this Section shall for any reason be unavailable to an Indemnified Party in respect of any judgment rendered loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability, or action in respect thereof, in such proportion as shall be appropriate to reflect the relative fault of the Indemnifying Party on the one hand and the Indemnified Party on the other with respect to any claim the statements or litigation by a third party omissions which resulted in such litigation loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party on the one hand or the Indemnified Party on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission, but not by reference to any Indemnified Party's stock ownership in the Company. In no event, however, shall the Holder of Registrable Securities be required to contribute in excess of the amount of the net proceeds received by the Holder in connection with the sale of Registrable Securities in the offering which is the subject of such loss, claim, damage or liability. The amount paid or payable by an Indemnified Party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this paragraph shall be deemed to include, for all damage purposes of this paragraph, any legal or other expenses reasonably incurred by the such Indemnified Party in connection with the defense against such claim investigating or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of defending any such claim action or litigation.
F. Buyer and Meritage may at their option set-off any claim. No person guilty of Seller's indemnification obligations arising under this Agreement against fraudulent misrepresentation (within the Future Land Profit component meaning of Section 12(f) of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT"Securities Act) will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount contribution from any person who was not guilty of such claim, which interest shall accrue at a rate of [ * ] per annumfraudulent misrepresentation.
Appears in 1 contract
Procedure for Indemnification. A. The (a) All claims for indemnification by a Buyer Indemnified Party or any Seller (collectively, the "Indemnified Persons") pursuant to this Section 11 shall be made in accordance with the provisions of this Agreement and the Escrow Agreement, as applicable (the "Indemnification Documents").
(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 Section 11, then such Indemnified Person may make a claim for indemnification pursuant to this Section 11 and shall be reimbursed in accordance with the applicable provisions of the Indemnification Documents, for any such Damages for which it is entitled to be indemnified hereunder indemnification pursuant to this Section 11 (the "INDEMNIFIED PARTY") shall promptly give notice hereunder subject to the party required right of the Shareholder Representative or Buyer, as the case may be, to indemnify dispute the Indemnified Person's entitlement to indemnification under the applicable terms of the Indemnification Documents).
(c) The Indemnified Person shall give prompt written notification to the "INDEMNIFYING PARTY") after obtaining written notice Shareholder Representative or Buyer, as the case may be, of the commencement of any claim as action, suit or proceeding relating to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any party claim for which Seller is responsible indemnification pursuant to this Section 11 may be sought; provided, however, that no delay on the part of the Indemnified Person in notifying the Shareholder Representative or Buyer, as the case may be, shall relieve Sellers or Buyer, as the case may be, of any liability or obligation hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only except to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, any damage or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages liability caused by or arising out of such failure. Within thirty (30) days after delivery of such notification, the Shareholder Representative or Buyer, as the case may be, may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit or proceeding (to the extent such action, suit or proceeding relates to matters for which indemnification is being sought from such party) provided the Shareholder Representative or Buyer, as the case may be, acknowledges in writing to the Indemnified Person that any settlement approved by damages, fines, costs or other liabilities that may be assessed against the Indemnifying Party or any judgment Indemnified Person in connection with such claim action, suit or litigationproceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Section 11. If the Shareholder Representative or Buyer, as the case may be, does not so assume control of such defense, the Indemnified Person shall control such defense. The Indemnifying Party party not controlling such defense may participate therein at its own expense. The party controlling such defense shall notkeep the other party advised of the status of such action, in suit or proceeding and the defense thereof. The Indemnified Person shall not agree to any settlement of such claim action, suit or proceeding without the prior written consent of the Shareholder Representative or Buyer, as the case may be, which shall not be unreasonably withheld. The Shareholder Representative or Buyer, as the case may be, shall not agree to any litigation resulting therefromsettlement of such action, consent to entry of any judgment (other than a judgment of dismissal on suit or proceeding without the merits without costs) except with the prior written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claimPerson, which interest shall accrue at a rate of [ * ] per annumnot be unreasonably withheld.
Appears in 1 contract
Sources: Stock Purchase Agreement (Southern Bottled Water Co Inc)
Procedure for Indemnification. A. (i) The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim Action or Proceeding as to which recovery may be sought against the indemnifying party Indemnifying Party because of the indemnity in Section 1 SECTION 7.3 and Section 2 SECTION 7.4 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real PropertyAction. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, notice unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action Action by a third party within 10 thirty (30) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or actionAction.
B. (ii) If the Indemnifying Party assumes the defense of such claim or litigationAction, the obligations of the Indemnifying Party hereunder as to such Action shall take include taking all steps necessary in the defense or settlement of such claim or litigation, Action and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationAction. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefromAction, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim Action and which does not have an adverse affect on the assets, business or litigationotherwise, or operations of the Indemnified Party. Anything in this SECTION 7.5 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such Action. In all cases, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of any Action, including by making employees, information, and documentation reasonably available at reasonable times.
C. (iii) If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation Action after receipt of notice from the such Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation Action in such manner as it deems appropriateappropriate and, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation Action plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation Action on such terms as it may reasonably deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigationappropriate.
D. (iv) The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by Actual Losses of the Indemnified Party in connection with the defense against such claim or litigationParty, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything . If the Indemnifying Party is the Company, the Actual Losses of Crystalix shall be satisfied solely by a release of shares of Issued Stock from the Indemnity Escrow Account to Crystalix, with each share of Issued Stock in this Section 3 the Indemnity Escrow Account to be valued at a per share price equal to the contrary notwithstandingaverage closing price of publicly traded shares over the 90-day period preceding the date of valuation, the party not primarily responsible for the defense purposes of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of reimbursing Crystalix for any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, Actual Losses (the "HOLDBACK TOTAL INDEMNITY AMOUNT") will ); The Company shall not be placed into escrow at such time payment is due under liable for any amount which exceeds the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against TOTAL INDEMNITY AMOUNT; PROVIDED HOWEVER that in the Holdback Amount. The form event the Actual Losses are caused by fraud of the escrow agreement Company and the shares of Issued Stock in the Indemnity Escrow Account are insufficient to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreementreimburse Crystalix in full for such Actual Losses, the Option Agreement (including but not limited Company shall promptly deliver a cash payment to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for Crystalix in the amount of any valid indemnification claim hereunder, Actual Losses for which Crystalix was not reimbursed through the Indemnifying Party shall be entitled to interest on release of shares of Issued Stock in the amount of such claim, which interest shall accrue at a rate of [ * ] per annumIndemnity Escrow Account.
Appears in 1 contract
Sources: Asset Purchase Agreement (Crystalix Group International Inc)
Procedure for Indemnification. A. The respective indemnification obligations of the ALG Parties on the one hand and the Inspira Parties on the other pursuant to Section 8.2 shall be conditioned upon compliance by the ALG Parties on the one hand and Inspira and the Company on the other with the following procedures for Claims:
(a) The party which is entitled to be indemnified hereunder seeking indemnification under Section 8.2 (the "INDEMNIFIED PARTYAggrieved Party") shall promptly agrees to give notice hereunder in writing to the party required to indemnify party(ies) from whom indemnity is sought (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of the assertion of any claim as to Claim or the commencement of any suit, action or proceeding in respect thereof for which recovery indemnity may be sought against the indemnifying party because of the indemnity in under Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the 8.2. The Indemnifying Party to assume may participate in and control the defense of any such claim and any litigation resulting from such claimthird-party suit, action or proceeding at its own expense, provided thatthat the Indemnifying Party agrees in writing to be responsible for the full amount of the Aggrieved Party's Damages attributable to such suit, Buyer action or Meritage may, proceeding. Except as otherwise provided in their discretion, undertake, at Seller's cost and expenseSection 8.3(b), the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder Aggrieved Party shall not settle any Claim in respect of which indemnity may be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to sought hereunder without the extent that, the rights and remedies consent of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or actionParty.
B. (b) If the Indemnifying Party assumes the defense of any such claim Claim or litigation, the Indemnifying Party action or proceeding in respect thereof: (i) it shall take all steps necessary in the defense or settlement of such claim or litigation, thereof and will shall hold the Indemnified Aggrieved Party harmless from and against any and all damages Damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment rendered in connection with such claim Claim, action or litigationproceeding; and (ii) the Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim claim, action or any litigation resulting therefromproceeding, consent to the entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except settlement, except, in either event, with the written prior consent of the Indemnified PartyAggrieved Party unless the judgment or settlement: (w) which does not include provide for any remedy against the Aggrieved Party other than the payment of money; (x) the Indemnifying Party promptly pays all amounts required thereunder; (y) includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Aggrieved Party of a release from all liability Liability in respect of such claim or litigation; and (z) such judgment or settlement could not be the basis of any claim or action by any third party (whether governmental or otherwise). If the Indemnifying Party assumes the defense of any such Claim or action or proceeding in respect thereof, the Aggrieved Party will have the right to participate in such litigation and to retain its own counsel at such Aggrieved Party's own expense.
C. (c) If the Indemnifying Party does not assume the defense of any such claim by a third party Claim, action or litigation after receipt of notice from the Indemnified Party to do soproceeding, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent agrees to: (i) cooperate and make available to the total amount demanded Aggrieved Party (A) all such books and records that are in such claim the possession or litigation plus the Indemnified Party's estimate control of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse and (B) such officers, employees and agents of the Indemnified Indemnifying Party for the amount of such settlement that are reasonably necessary and for all damages incurred by the Indemnified Party useful in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall defense; and (ii) promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect grant consent to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partyreasonable settlement.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Contribution Agreement (Salona Global Medical Device Corp)
Procedure for Indemnification. A. The (a) An Indemnified Party shall notify the indemnifying party which is entitled to be indemnified hereunder (in writing reasonably promptly after the "INDEMNIFIED PARTY") shall promptly give notice hereunder to assertion against the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice Indemnified Party of any claim as by a third party (a "Third Party Claim") in respect of which the Indemnified Party intends to which recovery may be sought against base a Claim for indemnification hereunder, but the failure or delay to so notify the indemnifying party because shall not relieve it of any obligation or liability that it may have to the Indemnified Party except to the extent that the indemnifying party demonstrates that its ability to defend or resolve such Third Party Claim is adversely affected thereby.
(i) Subject to the rights of or duties to any insurer or other third party having potential liability therefor, the indemnifying party shall have the right, upon written notice given to the Indemnified Party within 30 days after receipt of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise notice from the claim Indemnified Party of a third partyany Third Party Claim, shall permit the Indemnifying Party to assume the defense or handling of any such claim and any litigation resulting from such claimThird Party Claim, provided that, Buyer or Meritage mayat the indemnifying party's sole expense, in their discretion, undertake, at Seller's cost and expense, which case the defense provisions of any claim for which Seller is responsible hereunder with respect Section 8.5(b)(ii) hereof shall govern.
(ii) The indemnifying party shall select counsel reasonably acceptable to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in connection with conducting the defense or settlement handling of such claim or litigationThird Party Claim, and will hold the indemnifying party shall defend or handle the same in consultation with the Indemnified Party harmless from and against any and all damages caused by or arising out shall keep the Indemnified Party timely apprised of any settlement approved by the Indemnifying status of such Third Party or any judgment in connection with such claim or litigationClaim. The Indemnifying Party indemnifying party shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified Party, agree to a settlement of any Third Party Claim, unless (A) the settlement provides an unconditional release and discharge of the Indemnified Party and the Indemnified Party is reasonably satisfied with such discharge and release and (B) the Indemnified Party shall not have reasonably objected to any such settlement on the ground that the circumstances surrounding the settlement could result in an adverse impact on the business, properties or enter into any settlement (except with the written consent prospects of the Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense.
(i) which If the indemnifying party does not include as an unconditional term thereof the giving by the claimant or the plaintiff give written notice to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation within 30 days after receipt of the notice from the Indemnified Party of any Third Party Claim of the indemnifying party's election to do soassume the defense or handling of such Third Party Claim, the provisions of Section 8.5(c)(ii) hereof shall govern.
(ii) The Indemnified Party may may, at the indemnifying party's expense (which shall be paid from time to time by the indemnifying party as such expenses are incurred by the Indemnified Party), select counsel in connection with conducting the defense or handling of such Third Party Claim and defend against or handle such claim or litigation Third Party Claim in such manner as it deems may deem appropriate; provided, and unless however, that the Indemnifying Indemnified Party shall deposit keep the indemnifying party timely apprised of the status of such Third Party Claim and shall not settle such Third Party Claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the indemnifying party shall cooperate with the Indemnified Party a sum equivalent and shall be entitled to participate in the total amount demanded in defense or handling of such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, Third Party Claim with its own counsel and at its own expense.
(d) If the Indemnified Party intends to seek indemnification hereunder, other than for a Third Party Claim, then it shall notify the indemnifying party in writing 90 days after its discovery of facts upon which it intends to base its Claim for indemnification hereunder, but the failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of any obligation or liability that the indemnifying party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse have to the Indemnified Party for except to the extent that the indemnifying party demonstrates that the indemnifying party's ability to defend or resolve such Claim is adversely affected thereby.
(e) The Indemnified Party may notify the indemnifying party of a Claim even though the amount thereof plus the amount of such settlement and for all damages incurred other Claims previously notified by the Indemnified Party in connection with aggregate less than the defense against or settlement of such claim or litigationThreshold.
D. The Indemnifying Party (f) At the Closing, the Escrow Shares shall promptly reimburse be deposited in the Indemnified Party for the amount of any judgment rendered with respect escrow account to any claim or litigation by a third party in such litigation and for all damage incurred satisfy potential claims by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partyAmaz▇▇.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising ▇▇▇ ▇▇▇emnified Parties under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction DocumentsArticle VIII.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Merger Agreement (Amazon Com Inc)
Procedure for Indemnification. A. The In the event that any legal proceedings are instituted, or any claim or demand is asserted, by any third party which may give rise to any damage, liability, loss, or cost or expense in respect of which any party has indemnified, or is entitled obligated to be indemnified hereunder (indemnify, the "INDEMNIFIED PARTY") other party under Section 10.1 above, the Indemnified Party shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining Indemnifying Party written notice of any claim as to which recovery may be sought against the indemnifying party because institution of such proceedings, or the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim assertion of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claimor demand, provided thatpromptly after the Indemnified Party first be comes aware thereof; provided, Buyer or Meritage mayhowever, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an by the Indemnified Party to give such notice, or delay by an Indemnified Party in giving notice on such notice, unless, prompt basis shall not affect any of its rights to indemnification hereunder unless such failure materially and then only to adversely affects the extent that, the rights and remedies ability of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationproceeding. The Indemnifying Party shall nothave the right, at its option and at its own expense, to utilize counsel of its choice in connection with such proceeding, claim or demand, subject to the defense approval of the Indemnified Party, which approval shall not be unreasonably withheld or delayed, and to defend against, negotiate with respect to, settle or otherwise deal with such proceeding, claim or demand; provided, however, that no settlement of such proceeding, claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on demand shall be made without the merits without costs) except with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff delayed, unless, pursuant to the Indemnified Party of a release from all liability in respect terms and conditions of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do sosettlement, the Indemnified Party may defend against shall be released from any liability or other exposure with respect to such proceeding, claim or litigation in such manner as it deems appropriatedemand; and provided, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the samefurther, that the Indemnified Party may settle participate in any such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, proceeding with counsel of its choice and at its own expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In additionthe event, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant or to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderextent, the Indemnifying Party shall elects not to, or fails to, defend such proceeding, claim or demand and the Indemnified Party defends against, settles or otherwise deals with any such proceeding, claim or demand, any settlement thereof may be entitled to interest on made without the amount consent of the Indemnifying Party if it is given written notice of the material terms and conditions of such claimsettlement at least ten (10) days prior to a binding agreement with respect to such settlement being reached. Each of the parties agrees to cooperate fully with each other in connection with the defense, which interest shall accrue at a rate negotiation or settlement of [ * ] per annumany such proceeding, claim or demand.
Appears in 1 contract
Sources: Agreement for Sale of Recycled Water
Procedure for Indemnification. A. The party which is (a) A Person that may be entitled to be indemnified hereunder indemnification pursuant to Article IV or Article V, as applicable (the "INDEMNIFIED PARTY"an “Indemnified Party”) shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining send written notice of any pending or threatened claim as or demand that the Indemnified Party has determined has given or would reasonably be expected to which recovery may be sought give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the indemnifying Indemnified Party (a “Third Party Claim”)) (the “Indemnification Notice”) to any party because or parties obligated to provide indemnification pursuant to Article IV or Article V, as applicable (the “Indemnifying Party”). The Indemnification Notice shall set forth in reasonable detail in light of the indemnity in Section 1 circumstances then known to such Indemnified Party (i) the factual basis for, and Section 2 hereof andcircumstances of, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that(ii) the amount of Losses incurred or suffered by the Indemnified Party (if known at such time) or the amount of Losses that the Indemnified Party reasonably anticipates it will have to pay, Buyer and (iii) the specific representation, warranty or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any covenant on which such claim for which Seller indemnification is responsible hereunder with respect based, to the extent applicable; provided, however, that any lots, land, rights to purchase lots delay or land, project or subdivision within failure by the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such noticeIndemnification Notice, unlessor any failure to provide in reasonable detail the basis for such claim or amount of Losses incurred, shall not relieve the Indemnifying Party of its obligations under this Agreement except and then only to the extent thatthat the Indemnifying Party is actually prejudiced by such delay or failure, it being agreed that notices for any claims for which indemnification is sought hereunder must be delivered prior to the rights and remedies applicable Expiration Date.
(b) If such Indemnification Notice pertains solely to a breach of representation, warranty, covenant or agreement contained in this Agreement for indemnification pursuant to this Agreement, then the Indemnifying Party shall have been prejudiced as a result twenty (20) Business Days following receipt of the failure Indemnification Notice to give, or delay in giving, such notice. Failure by an notify the Indemnified Party that the Indemnifying Party disputes its liability to the Indemnified Party. If the Indemnifying Party does not notify an the Indemnified Party within twenty (20) Business Days following its receipt of such Indemnification Notice that the Indemnifying Party disputes its election liability to defend any the Indemnified Party, the claims specified by the Indemnified Party in such claim or action by Indemnification Notice shall be conclusively deemed a third party within 10 days after notice thereof shall have been given to liability of the Indemnifying Party, and the Indemnifying Party shall be deemed a waiver by pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claims (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party does notify the Indemnified Party within twenty (20) Business Days following its receipt of such Indemnification Notice that the Indemnifying Party disputes its right liability to defend the Indemnified Party, then the parties shall have such rights as may be available to them under this Agreement and applicable Laws (but subject to the limitations set forth elsewhere in this Article V, including Sections 5.4 and 5.8).
(c) If such Indemnification Notice pertains to a Third Party Claim, then the Indemnifying Party shall have twenty (20) Business Days following receipt of the Indemnification Notice to notify the Indemnified Party of whether or not the Indemnifying Party desires to assume the defense and control of such Third Party Claim. During such period, unless and until the Indemnifying Party has notified the Indemnified Party that it desires to assume the defense and control of such Third Party Claim, the Indemnified Party shall make such filings, including motions for continuance (and answers if a motion for continuance has not been granted), as may be necessary to preserve the parties’ positions and rights with respect to such claim or actiondemand.
B. (d) The Indemnifying Party shall be entitled to assume the defense and control of any Third Party Claim with counsel reasonably satisfactory to the Indemnified Party, at the Indemnifying Party’s sole expense; provided, however, that (i) the Indemnifying Party shall not be entitled to assume or continue control of the defense of any Third Party Claim if (v) the Third Party Claim relates to or arises in connection with any criminal Action, (w) the Third Party Claim seeks an injunction or equitable relief against any Indemnified Party, (x) the Third Party Claim has or would reasonably be expected to result in Losses in excess of the amounts available for indemnification pursuant to Section 4.1, Section 5.2 or Section 5.3, as applicable, (y) the Indemnifying Party has failed to defend in good faith the Third Party Claim or (z) the Indemnifying Party has not acknowledged that such Third Party Claim is subject to indemnification pursuant to Article IV or Article V, as applicable (it being agreed that any acknowledgment of the Indemnifying Party must be in writing). If the Indemnifying Party assumes the defense and control of a Third Party Claim and, within one hundred twenty (120) days after the Indemnifying Party has delivered notice of its intent to assume the defense, (A) the Indemnified Party discovers that the facts presented at the time the Indemnifying Party acknowledged its indemnification obligations in respect of such claim Third Party Claim pursuant to clause (z) above were not accurate, (B) the Indemnifying Party reasonably determines in good faith that such inaccuracy provides a reasonable basis for asserting that the Indemnifying Party does not have an indemnification obligation in respect of such Third Party Claim or litigationthat the Losses that could reasonably be expected to result from such Third Party Claim would exceed the maximum amount for which the Indemnifying Party would have been obligated to indemnify had the Indemnifying Party not delivered the acknowledgement pursuant to clause (z) above and (C) the Indemnifying Party has not taken any actions in connection with the defense of such Third Party Claim (including in furtherance of a settlement or compromise of, or the entry of any judgment arising from, such Third Party Claim) that would materially prejudice the Indemnified Party’s ability to conduct a good faith defense, then the Indemnifying Party may provide the Indemnified Party written notice that it is withdrawing the acknowledgement delivered by the Indemnifying Party pursuant to clause (z) above, together with reasonable supporting information regarding the basis for such withdrawal, following which (1) the Indemnifying Party shall not be bound by such acknowledgement for any purpose hereunder and (2) the Indemnified Party shall have the right to assume the defense of such Third Party Claim by delivering written notice of such assumption to the Indemnifying Party (it being agreed that all costs and expenses of the Indemnifying Party in conducting such defense prior to the date on which it provided notice of its withdrawal, including costs and expenses, shall be the responsibility of the Indemnifying Party and not the Indemnified Party).
(e) If the Indemnifying Party does not have the right to or does not assume the defense and control of any Third Party Claim pursuant to Section 5.5(d), the Indemnified Party shall be entitled to assume and control such defense provided that the reasonable expense of separate counsel for such Indemnified Party shall be paid by the Indemnifying Party (unless it is judicially determined that the Indemnifying Party was not required to indemnify the Indemnified Party for such claim).
(f) In any situation where the Indemnified Party is entitled to and does assume and control the defense of the claim, the Indemnifying Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense.
(g) If the parties to the action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by legal counsel that it has available to it one or more defenses or counterclaims which are inconsistent with one or more defenses or counterclaims which may be alleged by the Indemnifying Party, as a result of which representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for such Indemnified Party shall be paid by the Indemnifying Party.
(h) In any instance where the Indemnifying Party is obligated to pay for the expense of the Indemnified Party’s counsel pursuant to Section 5.5(e) or Section 5.5(g), the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold be obligated to pay for only one counsel for the Indemnified Party harmless from and against (unless it is reasonably determined in any and all damages caused by or arising out instance that additional expert counsel is necessary for the proper adjudication of any settlement approved by the claim).
(i) If the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in is entitled to and assumes the defense of such claim or any litigation resulting therefromThird Party Claim, it shall not consent to a settlement or compromise of, or the entry of any judgment (other than a judgment of dismissal on arising from, the merits without costs) except with Third Party Claim unless it has obtained the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, delayed or enter into any settlement (except with conditioned by the written Indemnified Party; provided, however, in no event shall the consent of the Indemnified PartyParty be required if each of the following conditions are satisfied with respect to such settlement (the “Settlement Conditions”): (A) which such compromise, settlement or judgment does not include as entail any admission of liability on the part of any Indemnified Party or the requirement that any Indemnified Party take any action other than the delivery of a customary release relating to the specific matter at issue; (B) such compromise, settlement or judgment involves only a cash payment and not any equitable relief, and the Indemnifying Party pays or causes to be paid such cash amounts (other than any Threshold Amount, if applicable); and (C) such compromise, settlement or judgment includes an unconditional term thereof the giving by the claimant release of each Purchaser Indemnified Party or the plaintiff Seller Indemnified Party, as applicable, reasonably satisfactory to the Indemnified Party of a release Party, from all liability Losses with respect to such Third Party Claim. If an Indemnified Party does not consent to any settlement proposed by the Indemnifying Party with respect to any Third Party Claim with respect to which the Indemnifying Party’s consent has been unreasonably withheld, conditioned or delayed, then the Indemnifying Party’s indemnification obligation (if any) pursuant to Article IV or Article V with respect to such Third Party Claim shall in respect of no event exceed the amount that would have been required to be paid if such claim or litigationsettlement had occurred.
C. (j) If the Indemnifying Party does not assume is entitled to and assumes the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Third Party to do soClaim, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless shall have the Indemnifying Party shall deposit with right (but not the Indemnified Party a sum equivalent obligation) to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigationThird Party Claim and to employ, at its own expense, counsel separate from counsel employed by the Indemnifying Party.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off (k) No Indemnified Party will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects consent to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profita settlement or compromise of, or such lesser portion that is then otherwise payablethe entry of any judgment arising from, (or admit any liability with respect to, any Third Party Claim without the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any prior written consent of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the (which consent shall not be unreasonably withheld, conditioned or delayed).
(l) An Indemnified Party for the amount of any valid indemnification claim hereunder, will cooperate with the Indemnifying Party shall be entitled in such defense and make available to interest on the amount of such claimIndemnifying Party, which interest shall accrue at a rate of [ * ] per annumthe Indemnifying Party’s expense, all witnesses, personnel, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably requested by the Indemnifying Party.
Appears in 1 contract
Sources: Unit Purchase Agreement (NorthStar Asset Management Group Inc.)
Procedure for Indemnification. A. The Subject to rights of offset, recoupment or calculation set forth in this Agreement, in the event a party which is entitled intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 10.1 or 10.3 hereof (the "INDEMNIFIED PARTY") “Indemnified Party”), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTY"“Indemnifying Party”) after obtaining written notice of any claim claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or Proceeding in any action instituted against the Indemnified Party as to which recovery or other action may be sought against the indemnifying party Indemnifying Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 10.1 or 10.3 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; PROVIDED, provided thatHOWEVER, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder or litigation which, if not first paid, discharged or otherwise complied with, would with respect to substantial certainty result in a material interruption or disruption of the Business of the Indemnified Party, taken as a whole, or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 twenty (20) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. . If the Indemnifying Party assumes the defense of such claim claim, investigation or litigationProceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall take include taking all steps necessary in the defense or settlement of such claim claim, investigation or litigation, Proceeding and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim claim, investigation or litigationProceeding, except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnifying Party shall not, in the defense of such claim or any litigation Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified PartyParty)(which consent shall not be unreasonably withheld, delayed or conditioned) which does not unless (i) there is no finding or admission of any violation of law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party (ii) the sole relief provided is monetary damages and (iii) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability Liability in respect of to such claim or litigation.
C. . If the Indemnifying Party does not assume assumes the defense of any such claim by a third party claim, investigation or litigation after receipt of notice from the Indemnified Party to do soProceeding resulting therefrom, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent be entitled to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer the claim, but solely by observation and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant comment to the Option AgreementIndemnifying Party, Buyer's final [ * ]payment of and the Future Land Profit, or such lesser portion that is then otherwise payable, (counsel selected by the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option AgreementIndemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or participate in its defense unless any of the Transaction Documents.
G. The parties agree that if following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.Party; or
Appears in 1 contract
Sources: Stock Purchase Agreement
Procedure for Indemnification. A. The 17.1 If any legal proceeding shall be instituted, or any claim or demand made, against an indemnified party in respect of which is entitled an indemnifying party may be liable hereunder, or if either party hereto for any reason shall believe that it has a claim against the other pursuant to the respective Clause 15 or 16 hereof, then the indemnified party or the party believing it has a claim against the other, as the case may be indemnified hereunder (in either case, the "INDEMNIFIED PARTYIndemnified Party") ), shall promptly give prompt written notice hereunder to the indemnifying party required to indemnify or the party against whom the party giving notice believes it has a claim, as the case may be (in either case, the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written ). Such notice of any shall specify in reasonable detail the date such underlying claim as to which recovery may be sought against or belief first was asserted or arose, the indemnifying party because nature of the indemnity loss (es) for which payment is claimed, the Clause or Clauses of this Agreement upon which such claim is based, and the amount payable in Section 1 respect thereto, and Section 2 hereof andshall provide a copy of the underlying claim.
17.2 If an Indemnifying Party shall receive notice pursuant to this Clause 17, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretionat its sole option, undertakeelect to defend against the loss, at Seller's cost and expensewhich 14 is the subject of such notice. If the Indemnifying Party elects to defend, then the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, Indemnified Party shall have the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give participate in such noticedefense, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party trial counsel shall be deemed a waiver chosen by the Indemnifying Party of its right and such trial counsel shall be reasonably satisfactory to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. . If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party elect to do sodefend, then the Indemnified Party may defend against do so by its own counsel, such claim or litigation in such manner as it deems appropriatecounsel shall be reasonably satisfactory to the Indemnifying Party, the costs of which shall be borne by the Indemnifying Party, and unless the Indemnifying Party shall deposit agrees to cooperate with the Indemnified Party a sum equivalent in such defense.
17.3 If the amount of any actual loss indemnified against hereunder shall at any time subsequent to the total amount demanded in such claim payment of any indemnity payable hereunder, be reduced by any recovery, settlement or litigation plus the Indemnified Party's estimate of the costs of defending the sameother payment, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for then the amount of such settlement and for all damages reduction, less any expense incurred by the Indemnified Party party receiving such recovery, settlement or other payment in connection with therewith, shall be repaid promptly to the defense against or settlement of such claim or litigationIndemnifying Party.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to17.4 Except as otherwise provided herein, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E terms of this Agreement against any amounts payable under Clause 17 shall survive the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction DocumentsClosing.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicis Pharmaceutical Corp)
Procedure for Indemnification. A. The party Subject to Section 7.1, all claims for indemnification under this Article VII shall be asserted and resolved as follows:
(a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an Indemnifying Party may be liable to an Indemnified Party hereunder is entitled asserted against or sought to be indemnified hereunder collected by a third party (an "Asserted Liability"), the Indemnified Party shall as soon as reasonably possible notify the Indemnifying Party in writing of such Asserted Liability, specifying the nature of such Asserted Liability (the "INDEMNIFIED PARTYClaim Notice") shall promptly give notice hereunder to ); provided, that no delay on the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because part of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving any such notice, unless, and then only Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder except to the extent thatthat the Indemnifying Party is materially prejudiced by such delay. The Indemnifying Party shall have 60 days (or less if the nature of the Asserted Liability requires) from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party whether or not the Indemnifying Party desires, at the rights Indemnifying Party's sole cost and remedies expense and by counsel of its own choosing to defend against such Asserted Liability; provided, that if, NYFS09...:\69\68669\0030\165\AGRN266W.00J under applicable standards of professional conduct a conflict on any significant issue between the Indemnifying Party and any Indemnified Party exists in respect of such Asserted Liability, then the Indemnifying Party shall have been prejudiced as a result of reimburse the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party for the reasonable fees and expenses of its election to defend any such claim or action by a third party within 10 days after notice thereof one additional counsel (who shall have been given be reasonably acceptable to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationParty). The Indemnifying Party shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld), or enter into consent to any settlement unless such settlement (except with the written consent i) includes a complete release of the Indemnified Party and (ii) does not require the Indemnified Party to make any payment or forego or take any action. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability which the Indemnifying Party shall have undertaken to defend so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall cooperate fully with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof, but the Indemnifying Party shall control the investigation, defense and settlement thereof. If the Indemnified Party desires to participate in any such defense it may do so at its sole cost and expense. If the Indemnifying Party elects not to defend against such Asserted Liability, then the Indemnifying Party shall have the right to participate in any such defense at its sole cost and expense, but the Indemnified Party shall control the investigation, defense and settlement thereof at the reasonable cost and expense of the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability effected without its prior written consent (which consent shall not be unreasonably withheld).
(b) In the event that an Indemnified Party should have a claim against the Indemnifying Party hereunder which does not include as an unconditional term thereof involve a claim or demand being asserted against or sought to be collected from it by a third party, the giving by Indemnified Party shall send a Claim Notice with respect to such claim to the claimant or Indemnifying Party. The Indemnifying Party shall have 60 days from the plaintiff date such Claim Notice is delivered during which to notify the Indemnified Party in writing of any good faith objections it has to the Indemnified Party Party's Claim Notice or claims for indemnification, setting forth in reasonable detail each of a release from all liability in respect of such claim or litigation.
C. the Indemnifying Party's objections thereto. If the Indemnifying Party does not assume NYFS09...:\69\68669\0030\165\AGRN266W.00J deliver such written notice of objection within such 60-day period, the defense of any such claim by a third party or litigation after receipt of notice from Indemnifying Party and the Indemnified Party shall attempt in good faith to do so, resolve any such dispute within 60 days of the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless delivery by the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent of such written notice of objection.
(c) With respect to the total amount demanded in such claim or litigation plus liabilities for which Seller shall be required to provide indemnification pursuant to Section 7.3(a)(i) resulting from a breach of Section 3.16, (i) the Acquiror Indemnified Party's estimate Parties shall cooperate with Seller, provide Seller as promptly as possible with all relevant materials, information and data requested by Seller and shall grant Seller, without charge, reasonable access to employees and premises of the costs of defending Snapple Companies, including the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate right to conduct environmental tests thereon and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigationto take samples therefrom.
D. The Indemnifying Party shall promptly reimburse (d) Acquiror acknowledges that the Indemnified Party for the amount of any judgment rendered indemnification provisions contained in this Article VII and in Article VIII constitute Acquiror's sole remedy with respect to any claim of the matters arising out of or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with this Agreement, the defense against Disclosure Schedule or any Exhibit hereto. Acquiror acknowledges and agrees that: (i) Acquiror and its representatives have the experience and knowledge to evaluate the business, financial condition, assets and liabilities of the Snapple Companies; and (ii) in determining to acquire the Shares and, therefore, the Snapple Business and the underlying assets and liabilities of the Snapple Companies (including the real property, fixtures and the tangible personal property), Acquiror has made its own investigation into, and based thereon Acquiror has formed an independent judgment concerning, the Shares, the Snapple Business and the underlying assets and liabilities of the Snapple Companies (including the real property, fixtures and the tangible personal property). It is therefore expressly understood and agreed that, except as otherwise provided in this Agreement, Acquiror accepts the condition of the real property and tangible personal property of the Snapple Companies "AS IS, WHERE IS" without any representation, warranty or guarantee, express or implied, as to merchantability, fitness for a particular purpose or otherwise as to the condition, size, extent, quantity, type or value of such property. Acquiror hereby waives, releases and agrees not to make any claim or litigationbring any contribution, whether cost recovery or not resulting fromother action against Seller, arising out ofits Affiliates, and, if applicable, their respective directors, officers, shareholders, partners, attorneys, accountants, agents and employees and their heirs, successors and NYFS09...:\69\68669\0030\165\AGRN266W.00J assigns, under the Environmental Laws, common law, or incurred with respect toany similar federal, the act of a third party.
E. Anything in state or local environmental law or regulation now existing or hereafter enacted other than for Losses which Seller is expressly required to indemnify Acquiror under this Section 3 to the contrary notwithstanding, the party Article VII. Acquiror agrees that it will not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of bring any such claim or litigation.
F. Buyer action under any Environmental Laws or any other environmental law or regulation which seeks to allocate liabilities between Acquiror and Meritage may at their option set-off any of Seller's indemnification obligations arising under Seller in a different manner than as expressly set forth in this Agreement against or in a more costly manner than would be the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due case under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest applicable Environmental Laws in effect on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumdate hereof.
Appears in 1 contract
Procedure for Indemnification. A. (a) Promptly after receipt by an indemnified party under Section 10.2, 10.4, or (to the extent provided in the last sentence of Section 10.3(c)) Section 10.3 of notice of the commencement of any Proceeding against it, such party seeking indemnification (the “Indemnified Party”) shall give written notice to the indemnifying party (the “Indemnifying Party”) specifying the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted; provided, that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to give such notice.
(b) If any Proceeding referred to in Section 10.8(a) is brought against the Indemnified Party by any claimant other than the Indemnifying Party (a “Third Person”), the Indemnified Party shall give reasonably prompt notice to the Indemnifying Party of the commencement of such Proceeding after such commencement is actually known to the Indemnified Party; provided, that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to give such notice. The party which is Indemnifying Party will be entitled to, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to assume the defense, investigate, contest or settle such Proceeding brought by such Third Person (a “Third Person Claim”); provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing its obligation to indemnify the Persons to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to such Third Person Claim and, subject to Sections 10.6 and 10.7, to discharge any lotscost or expense arising out of such investigation, landcontest or settlement and provided that any settlement shall include an unconditional release of such claim against the Indemnified Party. The Indemnifying Party will not, rights as long as it diligently conducts such defense, be liable to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party under this Section 10 for any fees of other counsel or any other expenses with respect to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall notProceeding, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages each case subsequently incurred by the Indemnified Party in connection with the defense against of such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; and (ii) no compromise or settlement of such claim or litigation.
D. The claims may be effected by the Indemnifying Party shall promptly reimburse without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. If notice is given to an Indemnifying Party of the commencement of any Proceeding and the Indemnifying Party does not, within ten days after the Indemnified Party’s notice is given, give notice to the Indemnified Party for the amount of any judgment rendered with respect its election to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for assume the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderProceeding, the Indemnifying Party shall will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnified Party.
(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to interest on indemnification under this Agreement, the amount Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such Proceeding, but the Indemnifying Party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(d) Notwithstanding the provisions of Section 11.5 but solely as between Seller and Buyer for the purposes of carrying out the intent of this Section 10.8, Seller and Buyer hereby consent to the non-exclusive jurisdiction of any court in which a Proceeding is brought by a Third Person against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such claim, which interest shall accrue at a rate of [ * ] per annumProceeding or the matters alleged therein.
Appears in 1 contract
Sources: LLC Interest Purchase Agreement (MGP Ingredients Inc)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (a) An Indemnified Party shall give written notice (the "INDEMNIFIED PARTY"“Claim Notice”) shall promptly give notice hereunder of any indemnification Claim under this Article VII to the Stockholder Representative reasonably promptly, but in any event (A) prior to expiration of any survival period for such Claim, and (B) if such Claim relates to the assertion against an Indemnified Party of any Claim by a third party required to indemnify (a “Third Party Claim”), within thirty (30) business days after receipt by the "INDEMNIFYING PARTY") after obtaining Indemnified Party of written notice of a legal process relating to such Third Party Claim; provided, however, that in the case of clause (B) the failure or delay to so notify the Stockholder Representative shall not relieve the Indemnifying Stockholders (collectively the “Indemnifying Party”) of any claim as obligation or liability that the Indemnifying Party may have to the Indemnified Party except to the extent that the Indemnifying Party’s ability to defend or resolve such indemnification Claim is adversely affected thereby. Any such Claim Notice shall indicate the facts and circumstances on which recovery may be sought against the indemnifying party because indemnification Claim is based (to the extent known to the Indemnified Party), the amount of the indemnity in Section 1 and Section 2 hereof such indemnification Claim if then ascertainable and, if such indemnity shall arise from not then ascertainable, the claim of a third partyestimated amount thereof, shall permit and the basis for indemnification pursuant to this Agreement.
(b) Unless the Claim is disputed by the Indemnifying Party by written notice delivered to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such noticewithin thirty (30) days after receipt of the Claim Notice, then the Claim shall be paid by the Escrow Agent from the Escrow Amount in accordance with the Escrow Agreement. All disputed indemnification Claims shall be resolved by Parent and the Stockholder Representative in accordance with either (i) a mutual agreement between Parent and the Stockholder Representative, which shall be memorialized in writing, or delay by an Indemnified Party in giving such notice, unless, and then only (ii) pursuant to the extent thatfinal decision of a court or other trier of fact.
(i) Except as provided in subsection (d)(i) below, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to giveright, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after upon written notice thereof shall have been given to the Indemnified Party within fifteen (15) days after receipt of the Claim Notice with respect to a Third Party Claim, to assume the defense or handling of such Third Party Claim, at such Indemnifying Party’s sole expense, in which case the provisions of Section 7.4(c)(ii) below shall govern.
(ii) The Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right select counsel to defend such claim or action.
B. If the Indemnifying Party assumes conduct the defense or handling of such claim or litigation, Third Party Claim reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall take all steps necessary defend or handle such Third Party Claim in the defense or settlement of such claim or litigation, and will hold consultation with the Indemnified Party harmless from and against any in such manner as is reasonable under the circumstances, and all damages caused by or arising out shall keep the Indemnified Party timely apprised of any settlement approved by the Indemnifying status of such Third Party or any judgment in connection with such claim or litigationClaim. The Indemnifying Party shall not, without the prior written consent of each Indemnified Party and Parent, agree to a settlement of any Third Party Claim, unless (A) the settlement (1) is for monetary damages only in an amount less than the Escrow Amount (or so much thereof as is then remaining available), or is for monetary damage only and the Stockholders agree to pay all monetary damages in excess of the Escrow Amount (or so much thereof as is then remaining available), (2) is contained in a written agreement, and (3) provides an unconditional release and discharge of the Indemnified Party (or the Surviving Corporation if the Indemnified Party is not a party to such Third Party Claim), and (B) Parent shall not have reasonably objected to such settlement on the grounds set forth in clause (i)(D) of subsection (d) below. The Indemnified Party shall cooperate with the Indemnifying Party and shall be entitled to participate in the defense or handling of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except Third Party Claim with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigationits own counsel and at its own expense.
C. If (i) If: (A) the Indemnifying Party does not give written notice to the Indemnified Party within fifteen (15) days after receipt of the Claim Notice with respect to a Third Party Claim stating that the Indemnifying Party has elected to assume the defense of such Third Party Claim; (B) at any time the Indemnifying Party shall fail to carry out such claim defense or handling in such manner as is reasonable under the circumstances; (C) the Third Party Claim involves other than only money damages; (D) the circumstances surrounding the Third Party Claim could, in the reasonable good faith judgment of Parent, result in a material adverse impact on the business, operations, condition (financial or otherwise) or prospects of Parent or the Surviving Corporation or could establish or contribute to a precedential custom or practice which could have a material adverse effect on the continuing business interests of Parent or the Surviving Corporation; (E) the matter involves or affects any Taxes of Parent or any affiliated, unitary or similar group of which Parent is a member, other than simply by a third party or litigation after receipt reason of notice from any deemed adjustment to the Merger Consideration; (F) the Indemnified Party has reasonably determined, upon the advice of counsel, that having common counsel with the Indemnifying Party would create a conflict of interest under applicable standards of professional conduct; or (G) the Third Party Claim is for monetary damages in excess of the amount that the Indemnified Party is entitled to do sorecover from the Indemnifying Party under this Article VII, then the Indemnifying Party shall not have the right to assume the defense of the Third Party Claim without the prior written consent of Parent, and in the absence of such consent the provisions of Section 7.4(d)(ii) below shall govern.
(ii) Subject to Section 7.4(d)(i), the Indemnified Party may may, at the Indemnifying Party’s expense, select counsel reasonably satisfactory to the Indemnifying Party to defend against and handle such claim Third Party Claim. All reasonable fees and costs associated with such defense shall be reimbursed to the Indemnified Party from the Escrow Amount as incurred (within thirty (30) days after invoices are submitted for payment). The Indemnified Party shall defend or litigation handle such Third Party Claim in consultation with the Indemnifying Party and in such manner as it deems appropriateis reasonable under the circumstances, and unless shall keep the Indemnifying Party timely apprised of the status of such Third Party Claim. The Indemnified Party shall not settle such Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). The Indemnifying Party shall cooperate with the Indemnified Party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at the Indemnifying Party’s expense.
(e) The Indemnifying Party hereby agrees to assume the defense of the NexTag Litigation, provided that if at any time the Indemnifying Party shall deposit with fail to carry out such defense or handling in such manner as is reasonable under the circumstances then the Indemnified Party a sum equivalent shall have the right to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for assume the defense of a claim or the NexTag litigation may, with counsel and the provisions of its choice and at its expense, participate in Section 7.4(d)(ii) above shall govern. The provisions of Section 7.4(c)(ii) shall apply to the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component Indemnifying Party’s handling of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction DocumentsNexTag Litgation.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Merger Agreement (HouseValues, Inc.)
Procedure for Indemnification. A. The Whenever any claim shall arise for indemnification hereunder, the party which is entitled to be indemnified hereunder seeking indemnification (the "INDEMNIFIED PARTYIndemnitee") shall promptly give notice hereunder to notify the other party required to indemnify (the "INDEMNIFYING PARTYIndemnitor") after obtaining written notice of the claim and, when known, the facts constituting the basis for such claim. If a direct claim, the Indemnitor shall satisfy such clause within ten business days. If any claim as for indemnification hereunder results from or is in connection with any claim or Adverse Consequence by a person who is not a party to which recovery may be sought against this Agreement ("Third Party Claim"), such notice shall also specify, if known, the indemnifying party because amount or an estimate of the indemnity in Section 1 and Section 2 hereof and, if such indemnity amount of the liability arising therefrom. The Indemnitee shall arise from give the claim of a third party, shall permit the Indemnifying Party to assume the defense Indemnitor prompt notice of any such claim and any litigation resulting from such claimthe Indemnitor shall undertake the defense thereof by representatives of its own choosing, provided that, Buyer or Meritage may, in their discretion, undertakereasonably satisfactory to the Indemnitee, at Seller's cost and expense, the defense expense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real PropertyIndemnitor. Notwithstanding the foregoing, The Indemnitee shall have the right to indemnification hereunder shall not be affected by participate in any failure such defense of an Indemnified a Third Party Claim with advisory counsel of its own choosing, at its own expense. If the Indemnitor, within a reasonable time after notice of any such Third Party Claim, fails to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent thatdefend, the rights and remedies Indemnitee or any Affiliate of the Indemnifying Party Indemnitee shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If undertake the Indemnifying Party assumes the defense of such claim or litigationdefense, the Indemnifying Party shall take all steps necessary in the defense compromise or settlement of such claim or litigationThird Party Claim on behalf of, and will hold for the Indemnified Party harmless from account of, the Indemnitor, at the expense and against any and all damages caused by or arising out risk of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationIndemnitor. The Indemnifying Party Indemnitor shall not, in without the defense of Indemnitee's written consent, settle or compromise any such claim Third Party Claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which that does not include include, as an unconditional term thereof thereof, the giving by the claimant or the plaintiff to Indemnitee and/or Indemnitee's Affiliate or Affiliates, as the Indemnified Party of a case may be, an unconditional release from all liability in respect of such Third Party Claim. The Indemnitee shall not pay any claim or litigation.
C. If covered by this right to indemnification prior to giving the Indemnifying Party does not assume Indemnitor the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation required by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 12 and the opportunity provided herein to handle the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigationitself.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The Each party which is entitled to be indemnified hereunder under ----------------------------- paragraph (a) or (b) of this Section 1.8 (the "INDEMNIFIED PARTYIndemnified Party") promptly (but in any event no more than fifteen (15) days) after receipt of notice of any claim or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought, shall promptly give notice hereunder to notify the party required to indemnify provide indemnification (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice in writing of the claim or the commencement thereof, providing reasonable detail of such claim or action together with copies of all correspondence received by the Indemnified Party in connection therewith; provided that the failure of the Indemnified Party to notify the Indemnifying Party within the time period required shall not relieve the Indemnifying Party from any claim as liability which it may have to which recovery may be sought against the indemnifying party because an Indemnified Party on account of the indemnity agreement contained in paragraph (a) or (b) of this Section 1 1.8, unless the Indemnifying Party was prejudiced materially by such failure, and Section 2 hereof in no event shall relieve the Indemnifying Party from any other liability which it may have to such Indemnified Party. If any such claim or action shall be brought against an Indemnified Party, it shall notify the Indemnifying Party thereof in writing within the time period required above and the Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes (if such indemnity shall arise the Indemnified Party is a Selling Holder, jointly with any other similarly notified Indemnifying Party), to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes assume the defense of such claim or litigationaction, the Indemnifying Party shall take all steps necessary in not be liable (except to the defense or settlement of such claim or litigation, and will hold extent the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall notproviso to this sentence is applicable, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costswhich event it will be so liable) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim under this Section 1.8 for any legal or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages other expenses subsequently incurred by the Indemnified Party in connection with the defense against thereof; provided that each Indemnified Party shall have the right to employ separate counsel to represent it and assume its defense (in which case, the Indemnifying Party shall not represent it) if (i) upon the written advice of counsel that the representation of both parties by the same counsel would cause an actual and material conflict of interest between them, or settlement (ii) in the event the Indemnifying Party has not assumed the defense thereof within fifteen (15) business days of receipt of written notice of such claim or litigation.
D. The commencement of action, and in which case the fees and expenses of one such separate counsel for all Indemnified Parties reasonably acceptable to the Indemnifying Party shall promptly be paid by the Indemnifying Party. If the Indemnified Parties employ such separate counsel they will not enter into any settlement agreement without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnifying Party so assumes the defense thereof, it may not agree to any settlement of any such claim or action as the result of which any remedy or relief (other than monetary damages for which the Indemnifying Party shall be responsible hereunder) shall be applied to or against the Indemnified Party, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. In any action hereunder as to which the Indemnifying Party has assumed the defense thereof with counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall continue to be entitled to participate in the defense thereof, with counsel of its own choice, and, except as set forth above, at its sole expense, and the Indemnifying Party shall not be obligated hereunder to reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation fees and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partycosts thereof.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Investors' Rights Agreement (Multilink Technology Corp)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY"a) An Indemnified Party shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as Claim for indemnification under this Section 9 (an “Indemnification Claim”) (i) in the case of an Indemnification Claim against Parent, to which recovery may be sought Parent and (ii) in the case of an Indemnification Claim against the indemnifying Company Shareholders (or any Company Shareholder), to the Shareholder Representatives (in this context, Parent, on the one hand, and the Company Shareholders (or any Company Shareholder), on the other hand, are each referred to herein as an “Indemnifying Party” and together as the “Indemnifying Parties”), as promptly as practicable, but in any event (A) prior to the expiration of any survival period for such Indemnification Claim, and (B) if such Indemnification Claim relates to the assertion against an Indemnified Party of any Claim by a third party because (a “Third Party Claim”), within 30 days after receipt by the Indemnified Party of written notice of a legal process relating to such Third Party Claim; provided, however, that, with respect to the time limits set forth in the foregoing clause (B), no delay on the part of an Indemnified Party in notifying the Indemnifying Parties shall relieve the Indemnifying Parties of any obligation under this Section 9 except to the extent, and only to the extent, that the Indemnifying Parties are materially and adversely affected thereby. Any such notice shall describe the nature of the indemnity in Section 1 and Section 2 hereof Indemnification Claim, the amount thereof if then ascertainable and, if such indemnity not then ascertainable, the estimated maximum amount thereof, and the provision or provisions of this Agreement on which the Indemnification Claim is based.
(i) Subject to Section 9.5(c), the Indemnifying Parties shall arise have the right, upon written notice given to the Indemnified Party within 30 days after receipt of the notice from the claim Indemnified Party of a third partyany Third Party Claim, shall permit the Indemnifying Party to assume the defense or handling of any such claim and any litigation resulting from such claimThird Party Claim, provided that, Buyer or Meritage mayat the Indemnifying Parties’ sole expense, in their discretion, undertake, at Seller's cost and expense, which case the defense provisions of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder Section 9.5(b)(ii) shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or actiongovern.
B. If the (ii) The Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party Parties shall take all steps necessary in select counsel to conduct the defense or settlement handling of such claim Third Party Claim reasonably satisfactory to the Indemnified Party. The Indemnifying Parties shall defend or litigation, and will hold handle such Third Party Claim in consultation with the Indemnified Party harmless from and against any in such manner as is reasonable under the circumstances and all damages caused by or arising out shall keep the Indemnified Party timely apprised of any settlement approved by the Indemnifying status of such Third Party or any judgment in connection with such claim or litigationClaim. The Indemnifying Party Parties shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified PartyParty and, or enter into in the case of the Parent Indemnified Parties, Parent (if different), agree to a settlement of any settlement (except Third Party Claim, which consent will not be unreasonably withheld. The Indemnified Party shall cooperate with the Indemnifying Parties and shall be entitled to participate in but not control the defense or handling of such Third Party Claim with its own counsel and at its own expense. The Indemnified Party shall not, without the prior written consent of the Indemnified Party) Indemnifying Parties (which does consent shall not include as an unconditional term thereof the giving be unreasonably withheld), agree to a settlement of any Third Party Claim that is being defended and handled by the claimant or Indemnifying Parties pursuant to this Section 9.5(b)(ii).
(i) If (A) the plaintiff Indemnifying Parties do not give written notice to the Indemnified Party within 30 days after receipt of the notice from the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If Third Party Claim that the Indemnifying Party does not Parties have elected to assume the defense or handling of such Third Party Claim; (B) at any time the Indemnifying Parties shall fail to carry out such claim by a third party defense or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation handling diligently and in such manner as it deems appropriate, and unless is reasonable under the Indemnifying circumstances after written notice to such effect that is not timely cured thereafter; (C) the Third Party shall deposit with Claim involves other than only money damages; (D) in the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate case of the costs of defending the sameParent Indemnified Parties, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred an adverse judgment with respect to, the act Third Party Claim could, in the reasonable good faith judgment of Parent, establish or contribute to a third party.
E. Anything precedential custom or practice which would have a material adverse effect on the continuing business interests of Parent or its Affiliates; (E) in this Section 3 to the contrary notwithstandingcase of the Parent Indemnified Parties, the party not primarily responsible for circumstances surrounding the defense of a claim or litigation maymatter could, with counsel of its choice and at its expense, participate in the defense reasonable good faith judgment of any such claim Parent, result in a material adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In additionotherwise), Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, condition (financial or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amountotherwise) or any prospects of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse Parent or its Affiliates; or (F) the Indemnified Party for has reasonably determined, upon advice of counsel, that having common counsel with the amount Indemnifying Parties would present such counsel with a conflict of any valid indemnification claim hereunderinterest, then the provisions of Section 9.5(c)(ii) shall govern.
(ii) The Indemnified Party may, at the Indemnifying Parties’ expense, select counsel reasonably satisfactory to the Indemnifying Parties to defend or handle such Third Party Claim in a manner that is reasonable under the circumstances; provided, however, that the Indemnified Party shall keep the Indemnifying Parties timely apprised of the status of such Third Party Claim. The Indemnified Party shall not settle such Third Party Claim without the prior written consent of the Indemnifying Parties, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the Indemnifying Party Parties shall be entitled to interest on cooperate with the amount of such claim, which interest shall accrue at a rate of [ * ] per annumIndemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Captaris Inc)
Procedure for Indemnification. A. The with Respect to Third Party --------------------------------------------------------- Claims. ------
(a) If any third party which is entitled shall notify a party to be indemnified hereunder this Agreement (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lotsmatter (a "Third Party Claim") that may give rise to a claim for indemnification against any other party to this Agreement (the "Indemnifying Party") under this Article VIII, landthen the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, rights however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to purchase lots or land, project or subdivision within the Owned Real Propertyextent) the Indemnifying Party is thereby prejudiced. Notwithstanding Such notice shall state the foregoing, amount of the claim and the relevant details thereof.
(b) Any Indemnifying Party will have the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out the Third Party Claim with counsel of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff its choice satisfactory to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If so long as (i) the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from notifies the Indemnified Party in writing within ten days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party pursuant to do sothe provisions of this Article VIII, as applicable, from and against the entirety of any adverse consequences (which will include, without limitation, all losses, claims, liens, and attorneys' fees and related expenses) the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not suffer resulting from, arising out of, relating to, in the nature of, or incurred caused by the Third Party Claim, (ii) the Third Party Claim involves only monetary damages and does not seek an injunction or equitable relief, (iii) settlement of, or adverse judgment with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstandingThird Party Claim is not, in the party not primarily responsible for good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (iv) the Indemnifying Party conducts the defense of a claim the Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 8.3(b) above, the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in (but not control) the defense of the Third Party Claim. The Indemnified Party will not consent to the entry of any judgment or litigation mayenter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (which will not be unreasonably withheld), and (iii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (which will not be unreasonably withheld). In the case of (c)(ii) or (c)(iii) above, any such consent to judgment or settlement shall include, as an unconditional term thereof, the release of the Indemnified Party from all liability in connection therewith.
(d) If any condition set forth in Section 8.3(b) above is or becomes unsatisfied, (i) the Indemnified Party may defend against the Third Party Claim with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails shall have the right to promptly participate in (but not control) such defense, and (ii) consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim and any matter it may deem appropriate and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith, (iii) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the amount cost of any valid indemnification claim hereunderdefending against the Third Party Claim (including attorneys' fees and expenses), and (iv) the Indemnifying Party shall be entitled will remain responsible for any adverse consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to interest on the amount of such claimfullest extent provided in this Article VIII. Notwithstanding the above, if the only item in Section 8.3(b) which interest shall accrue at was not satisfied is item 8.3(b)(iii), the Indemnified Party will consult with the Indemnifying Party prior to settling a rate of [ * ] per annumThird Party Claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eastern Environmental Services Inc)
Procedure for Indemnification. A. The party which is entitled In the event any of the Purchaser Indemnified Parties or the Company Indemnified Parties intends to be indemnified hereunder seek indemnification pursuant to the provisions of Sections 9.1 or 9.2 hereof (the "INDEMNIFIED PARTYIndemnified Party") ), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of any claim claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or Proceeding in any action instituted against the Indemnified Party as to which recovery or other action may be sought against the indemnifying party Indemnified Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 9.1 or 9.2 hereof, and, if such indemnity shall arise from the claim of a third partyThird Party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; provided, provided thathowever, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder with respect to or Proceeding which, if not first paid, discharged or otherwise complied with, would result in a material interruption or disruption of the business of the Indemnified Party, or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party Third Party within 10 twenty (20) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. . If the Indemnifying Party assumes the defense of such claim claim, investigation or litigationProceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall take include taking all steps necessary in the defense or settlement of such claim claim, investigation or litigation, Proceeding and will hold holding the Indemnified Party harmless from and against any and all damages caused by Losses arising from, in connection with or arising out of incident to any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim claim, investigation or litigationProceeding (subject to the remaining Basket Amount, if any, and indemnification limits set forth in this Agreement), except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnifying Party shall not, in the defense of such claim or any litigation Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any violation of Applicable Law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party, (ii) the sole relief provided is monetary damages that are paid in full for Losses (subject to the remaining Basket Amount (which will be paid by the Purchaser), if any, but which payment does not exceed the indemnification limits set forth in this Agreement), and (iii) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability Liability in respect of to such claim or litigation.
C. . If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim, but solely by observation and comment to the Indemnifying Party, and the counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party, or (ii) the Indemnifying Party's legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party, but in no event shall the Indemnifying Party be obligated to pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action or Proceeding in any one jurisdiction. If the Indemnifying Party does not assume the defense of any such claim by a third party Third Party or litigation resulting therefrom after receipt of notice from the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost (including attorneys' fees) of defending the same, the Indemnified Party may settle such claim or litigation Proceeding on such terms as it may reasonably deem appropriate and the Indemnifying Party shall shall, subject to its defenses and the applicability of any remaining threshold loss amount provided for in Section 9.1 hereof, promptly reimburse the Indemnified Party for the amount of such settlement and for all reasonable costs (including attorneys' fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim, investigation or litigation, or if any such claim or litigation.
D. The litigation is not so settled, the Indemnifying Party shall shall, subject to its defenses and the applicability of any remaining Basket Amount provided for in Section 9.1 hereof, promptly reimburse the Indemnified Party for the amount of any final non-appealable judgment rendered with respect to any claim or litigation by a third party Third Party in such litigation and for all costs (including attorneys' fees), expenses and damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything Third Party. Each party shall cooperate in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, good faith and in all respects with counsel of each Indemnifying Party and its choice and at representatives (including without limitation its expense, participate counsel) in the investigation, negotiation, settlement, trial and/or defense of any such claim or litigation.
F. Buyer Proceedings (and Meritage may at their option set-off any of Seller's indemnification obligations appeal arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amounttherefrom) or any of the Transaction Documents.
G. claim. The parties agree that if the Indemnifying Party fails shall cooperate with each other in any notifications to promptly reimburse the Indemnified Party for the amount and information requests of any valid indemnification claim hereunderinsurers. No individual representative of any Person, the Indemnifying Party or their respective Affiliates shall be entitled personally liable for any Loss or Losses under this Agreement, except as specifically agreed to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumby said individual representative.
Appears in 1 contract
Procedure for Indemnification. A. The (a) An Indemnified Party shall give written notice (a “Claim Notice”) to any entity or Person who is obligated to provide indemnification (an “Indemnifying Party”) for any claim under this ARTICLE 8 (an “Indemnification Claim”), reasonably promptly, but in any event (A) prior to expiration of any applicable survival period set forth in Section 9.1, and (B) if such Indemnification Claim relates to the assertion against an Indemnified Party of any claim by a third party which (a “third party action”), within forty-five (45) days after receipt by the Indemnified Party of written notice of a legal process relating to such third party action; provided, however, that the failure to so notify the Indemnifying Party within such time period shall not relieve the Indemnifying Party of any obligation or liability to the Indemnified Party, except to the extent that the Indemnifying Party demonstrates that its ability to resolve such Indemnification Claim is materially and adversely affected thereby. An Indemnified Party shall not submit a Claim Notice unless it certifies in writing that it believes in good faith that it is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder with respect to the party required to indemnify Damages specified in such Claim Notice.
(the "INDEMNIFYING PARTY"b) after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit Unless the Indemnifying Party to assume contests the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, Indemnification Claim in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been writing given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation within thirty (30) days after receipt of notice from a Claim Notice and describing in reasonable detail the Indemnified Party to do sobasis for contesting the Indemnification Claim, the Indemnified Party may defend against shall, subject to the other terms of this ARTICLE 8, be paid the amount of Damages related to such claim Indemnification Claim or litigation in such manner as it deems appropriate, and unless the uncontested portion thereof. An Indemnifying Party shall deposit with not contest any Indemnification Claim (or any portion thereof) unless it certifies in writing that it believes in good faith that the Indemnified Party a sum equivalent is not entitled to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered be indemnified with respect to any claim or litigation by a third party the Damages specified in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Propertyclaim. Any such set-off will disputed Indemnification Claim shall be against future lot takedowns resolved either (i) in a written agreement signed by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all or (ii) by the final decision of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment a court or other trier of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documentsfact.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (a) If any Person shall claim indemnification (the "INDEMNIFIED PARTYIndemnified Party") hereunder for any claim other than a third party claim, the Indemnified Party shall promptly give written notice hereunder to the other party required to indemnify from whom indemnification is sought (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of the basis for such claim or demand and setting forth the nature and amount of the claim in detail. If an Indemnified Party shall claim indemnification hereunder arising from any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim or demand of a third party, the Indemnified Party shall permit promptly give written notice (a "Third-Party Notice") to the Indemnifying Party to assume of the defense of any basis for such claim and or demand, setting forth the nature of the claim or demand in detail. In any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expensecase, the defense of any claim for which Seller is responsible hereunder with respect failure to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, notify or delay by in notifying an Indemnified Indemnifying Party in giving such noticewill not relieve the Indemnifying Party of its obligations pursuant to Section 9.1 or 9.2, unlessas applicable, and then only except to the extent thatthat such failure actually harm▇ ▇▇▇ Indemnifying Party. The Indemnifying Party shall defend and, the rights if appropriate, settle at its own cost and remedies through counsel of the Indemnifying Party's choosing, any claim or demand set forth in a Third-Party shall have been prejudiced as a result of Notice giving rise to such claim for indemnification for which the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party is obligated to notify an Indemnified indemnify pursuant to this Article IX. In the event the Indemnifying Party of its election undertakes to compromise or defend any such claim or action demand, it shall promptly (and in any event, no later than fifteen (15) days after receipt of the Third-Party Notice) notify the Indemnified Party in writing of its intention to do so and shall give the Indemnified Party such security in that regard as the Indemnified Party reasonably may request. The Indemnified Party shall fully cooperate with the Indemnifying Party and its counsel in the defense or compromise of such claim or demand. After the assumption of the defense by the Indemnifying Party, the Indemnified Party shall not be liable for any legal or other expenses subsequently incurred by the Indemnifying Party in connection with such defense, but the Indemnified Party may participate in such defense at its own expense. No settlement of a third party within 10 days after notice thereof shall have been given to claim or demand defended by the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits made without costs) except with the written consent of the Indemnified Party, or enter into any settlement (such consent not to be unreasonably withheld. The Indemnifying Party shall not, except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff , consent to the Indemnified Party entry of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against judgment or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.does
Appears in 1 contract
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (a) Upon obtaining actual knowledge of any item of Damages not involving a Third Party Claim, the "INDEMNIFIED PARTY") shall Indemnified Party shall, as promptly as practicable following the date the Indemnified Party has obtained such actual knowledge, give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any such claim as for which indemnification is sought pursuant to which recovery may be sought against Section 12.1 (each, a “Claim”) to the indemnifying party because of the indemnity in Indemnifying Party, but, subject to Section 1 and Section 2 hereof and12.3(a), if no failure to give such indemnity notice shall arise from the claim of a third party, shall permit relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). The Indemnified Party, at its cost, shall furnish to the Indemnifying Party in good faith and in reasonable detail such information as the Indemnified Party may have with respect to such Claim (including copies of any applicable invoice, billing or other document evidencing or asserting the same).
(b) Promptly after receipt by an Indemnified Party of notice of the commencement of any action, suit or proceeding involving a Claim by a third party (each, a “Third Party Claim”) against it, such Indemnified Party will give written notice to the Indemnifying Party of the commencement of such Third Party Claim, and, at its cost, shall give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but, subject to Section 12.3(a), no failure to give such notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). The Indemnifying Party shall have the right, but not the obligation, to assume the defense and control the settlement of such Third Party Claim, at the Indemnifying Party’s sole cost and expense (and not as a reduction in the amount of indemnification available under Section 12.1(a), 12.1(b) or 12.1(c), as the case may be), using counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that the Indemnifying Party establishes to the reasonable satisfaction of the Indemnified Party that such Third Party Claim plus all other pending Claims and Third Party Claims will not exceed the Indemnifying Party’s applicable limitations on indemnification set forth in Section 12.3. If the Indemnifying Party satisfies the requirements of this Section 12.2(b) and desires to exercise its right to assume the defense and control the settlement of such Third Party Claim, the Indemnifying Party shall give written notice (the “Notice”) to the Indemnified Party within twenty (20) calendar days of receipt of written notice from the Indemnified Party of the commencement of or assertion of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, Third Party Claim stating that the Indemnifying Party shall assume the defense and control of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertysuch Third Party Claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to indemnification hereunder (i) assume the defense and control the settlement of a Third Party Claim, which settlement shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only subject to the extent that, the rights and remedies consent of the Indemnifying Party (not to be unreasonably withheld) except as otherwise provided in Section 12.2(e), and (ii) employ separate counsel at the reasonable expense of the Indemnifying Party and control its own defense of a Third Party Claim if (x) the named parties to any such action (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been prejudiced as a result of advised by counsel that there are one or more legal or equitable defenses available to the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given that are different from those available to the Indemnifying Party shall be deemed or (y) such Third Party Claim involves equitable or other non-monetary damages or in the reasonable judgment of the Indemnified Party, such settlement would have a waiver by continuing Material Adverse Effect on the Indemnified Party’s business (including any material impairment of its relationships with customers and suppliers). In addition, if the Indemnifying Party fails to give the Indemnified Party the Notice in accordance with the terms of its this Section 12.2(b), the Indemnified Party shall have the right to defend assume control of the defense of and settle the Third Party Claim and, to the extent the Indemnified Party is finally determined to be entitled to indemnification for Damages suffered in connection with such claim Third Party Claim, all costs incurred in connection therewith shall constitute additional Damages of the Indemnified Party. In any such case specified in the foregoing two sentences, the Indemnifying Party shall not, in connection with any one action or actionseparate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party.
B. (c) If at any time after the Indemnifying Party assumes the defense of a Third Party Claim, any of the conditions set forth in Section 12.2(b) above are no longer satisfied, the Indemnified Party shall have the same rights as set forth above as if the Indemnifying Party had never assumed the defense of such claim.
(d) Notwithstanding the foregoing, the Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate, at its own expense, in the defense of any Third Party Claim that the other party is defending.
(e) If the Indemnifying Party assumes the defense of such claim or litigationany Third Party Claim in accordance with the terms of Section 12.2(b), the Indemnifying Party shall take have the right, upon thirty (30) calendar days’ prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim; provided, however, that with respect to such consent to the entry of judgment or settlement, the Indemnified Party will not have any liability and will be fully indemnified with respect to all steps necessary in Damages related to such Third Party Claim. Notwithstanding the defense foregoing, the Indemnifying Party shall not have the right to consent to the entry of judgment with respect to, or otherwise settle a Third Party Claim if (i) the judgment or settlement of such claim Third Party Claim involves equitable or litigationother non-monetary damages or relief, and will hold or (ii) in the reasonable judgment of the Indemnified Party harmless from and against any and all damages caused by or arising out of Party, any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than for solely money damages would have a judgment of dismissal continuing Material Adverse Effect on the merits Indemnified Party’s business (including any material impairment of its relationships with customers and suppliers), without costs) except with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. The Indemnified Party shall have the sole and exclusive right to settle any Third Party Claim for which it has assumed the defense and control of the settlement on such terms and conditions as it deems reasonably appropriate if such Third Party Claim involves only equitable or enter into any other non-monetary relief; provided, however, that if such settlement (except with purports to impose equitable or other non-monetary relief on the written Indemnifying Party, then the Indemnified Party shall not settle such Third Party Claim without the consent of the Indemnified Indemnifying Party) , which does consent shall not include as an unconditional term thereof the giving by the claimant or the plaintiff to the be unreasonably withheld. The Indemnified Party shall have the right to settle any Third Party Claim involving monetary damages with the consent of a release from all liability in respect of such claim or litigationthe Indemnifying Party, which consent shall not be unreasonably withheld.
C. If (f) Whether or not the Indemnifying Party does not assume chooses to defend or prosecute any Third Party Claim, all the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party parties hereto shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate cooperate in the defense of any or prosecution thereof and shall furnish such claim or litigationrecords, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith.
F. Buyer and Meritage may at their option set-off any (g) Any disputes as to the amounts of Seller's Damages or entitlement to indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will Article XII shall be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property resolved pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction DocumentsArticle XIV.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Converted Organics Inc.)
Procedure for Indemnification. A. The party Subject to Section 7.1, all claims for indemnification under this Article VII shall be asserted and resolved as follows:
(a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an Indemnifying Party may be liable to an Indemnified Party hereunder, is entitled asserted or sought to be indemnified hereunder collected by a third party (an "Asserted Liability"), the Indemnified Party shall as soon as reasonably possible notify the Indemnifying Party in writing of such Asserted Liability, specifying the nature of such Asserted Liability (the "INDEMNIFIED PARTYClaim Notice") shall promptly give notice hereunder to ); provided, that no delay on the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because part of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving any such notice, unless, and then only Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder except to the extent thatthat the Indemnifying Party is materially prejudiced by such delay. The Indemnifying Party shall have 60 days (or less if the nature of the Asserted Liability requires) from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party whether or not the Indemnifying Party desires, at the rights Indemnifying Party's sole cost and remedies expense and by counsel of its own choosing, to defend against such Asserted Liability; provided, that if, under applicable standards of professional conduct a conflict on any significant issue between the Indemnifying Party and any Indemnified Party exists in respect of such Asserted Liability, then the Indemnifying Party shall have been prejudiced as a result of reimburse the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party for the reasonable fees and expenses of its election to defend any such claim or action by a third party within 10 days after notice thereof one additional counsel (who shall have been given be reasonably acceptable to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationParty). The Indemnifying Party shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld), or enter into consent to any settlement unless such settlement (except with the written consent i) includes a complete release of the Indemnified Party and (ii) does not require the Indemnified Party to make any payment or forego or take any action. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability which the Indemnifying Party shall have undertaken to defend so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. If the Indemnifying Party undertakes to defend against an Asserted Liability, the Indemnified Party shall cooperate fully with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof, but the Indemnifying Party shall control the investigation, defense and settlement thereof. If the Indemnified Party desires to participate in any such defense it may do so at its sole cost and expense. If the Indemnifying Party elects not to defend against such Asserted Liability, then the Indemnifying Party shall have the right to participate in any such defense at its sole cost and expense, but the Indemnified Party shall control the investigation, defense and settlement thereof at the reasonable cost and expense of the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability effected without its prior written consent (which consent shall not be unreasonably withheld).
(b) In the event that an Indemnified Party should have a claim against the Indemnifying Party hereunder which does not include as an unconditional term thereof involve a claim or demand being asserted by a third party, the giving by Indemnified Party shall send a Claim Notice with respect to such claim to the claimant or Indemnifying Party. The Indemnifying Party shall have 60 days from the plaintiff date such Claim Notice is delivered during which to notify the Indemnified Party in writing of any good faith objections it has to the Indemnified Party Party's Claim Notice or claims for indemnification, setting forth in reasonable detail each of a release from all liability in respect of such claim or litigation.
C. the Indemnifying Party's objections thereto. If the Indemnifying Party does not assume deliver such written notice of objection within such 60-day period, the defense of any such claim by a third party or litigation after receipt of notice from Indemnifying Party and the Indemnified Party shall attempt in good faith to do so, resolve any such dispute within 60 days of the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless delivery by the Indemnifying Party of such written notice of objection.
(c) With respect to the liabilities for which Sellers may be required to provide indemnification pursuant to Section 7.3(a)(i) resulting from a breach or alleged breach of Section 3.17, the Acquiror Indemnified Parties shall deposit cooperate with Sellers, provide Sellers as promptly as possible with all relevant materials, information and data requested by Sellers and shall ▇▇▇▇▇ ▇▇▇▇▇▇▇, without charge, reasonable access to employees and premises of the PEPL Companies, including the right to conduct environmental tests thereon and to take samples therefrom.
(d) Acquiror acknowledges that the indemnification provisions contained in Section 5.9, this Article VII and Article VIII, together with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Partytermination rights under Article IX, constitute Acquiror's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered sole remedies with respect to any claim of the matters arising out of or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with this Agreement, the defense against Disclosure Schedule or any Exhibit hereto. Acquiror acknowledges and agrees that: (i) Acquiror and its representatives have the experience and knowledge to evaluate the business, financial condition, assets and liabilities of the PEPL Companies; and (ii) in determining to acquire the Shares and, therefore, the Business and the underlying assets and liabilities of the PEPL Companies (including the real property, fixtures and the tangible personal property), Acquiror has made its own investigation into, and based thereon Acquiror has formed an independent judgment concerning, the Shares, the Business and the underlying assets and liabilities of the PEPL Companies (including the real property, fixtures and the tangible personal property). It is therefore expressly understood and agreed that, except as otherwise provided in this Agreement, Acquiror accepts the condition of the real property and tangible personal property of the PEPL Companies "AS IS, WHERE IS" without any representation, warranty or guarantee, express or implied, as to merchantability, fitness for a particular purpose or otherwise as to the condition, size, extent, quantity, type or value of such property. Acquiror hereby waives, releases and agrees not to make any claim or litigationbring any contribution, whether cost recovery or not resulting fromother action against Sellers, arising out oftheir respective Affiliates, and, if applicable, their respective directors, officers, shareholders, partners, attorneys, accountants, agents and employees and their heirs, successors and assigns, under the Environmental Laws, common law, or incurred with respect toany federal, the act state or local environmental or other law or regulation now existing or hereafter enacted other than for Losses which Sellers are expressly required to indemnify Acquiror under this Article VII or for specific performance of a third party.
E. Anything in this Sellers' obligations under Section 3 to the contrary notwithstanding, the party 5.14. Acquiror agrees that it will not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of bring any such claim or litigation.
F. Buyer action under any Environmental Laws or any other environmental or other law or regulation which seeks to allocate liabilities between Acquiror and Meritage may at their option set-off any of Seller's indemnification obligations arising under Sellers in a different manner than as expressly set forth in this Agreement against or in a more costly manner than would be the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, case under applicable Environmental Laws or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest other laws in effect on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumdate hereof.
Appears in 1 contract
Procedure for Indemnification. A. The (a) An Indemnified Party shall notify the indemnifying party which is entitled to be indemnified hereunder (in writing reasonably promptly after the "INDEMNIFIED PARTY") shall promptly give notice hereunder to assertion against the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice Indemnified Party of any claim as by a third party (a "Third Party Claim") in respect of which the Indemnified Party intends to which recovery may be sought against base a Claim for indemnification hereunder, but the failure or delay so to notify the indemnifying party because shall not relieve it of any obligation or liability that it may have to the Indemnified Party except to the extent that the indemnifying party demonstrates that its ability to defend or resolve such Third Party Claim is adversely affected thereby.
(i) Subject to the rights of or duties to any insurer or other third party having potential liability therefor, the indemnifying party shall have the right, upon written notice given to the Indemnified Party within 30 days after receipt of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise notice from the claim Indemnified Party of a third partyany Third Party Claim, shall permit the Indemnifying Party to assume the defense or handling of any such claim and any litigation resulting from such claimThird Party Claim, provided that, Buyer or Meritage mayat the indemnifying party's sole expense, in their discretion, undertake, at Seller's cost and expense, which case the defense provisions of any claim for which Seller is responsible hereunder with respect Section 8.5(b)(ii) hereof shall govern.
(ii) The indemnifying party shall select counsel reasonably acceptable to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in connection with conducting the defense or settlement handling of such claim or litigationThird Party Claim, and will hold the indemnifying party shall defend or handle the same in consultation with the Indemnified Party harmless from and against any and all damages caused by or arising out shall keep the Indemnified Party timely apprised of any settlement approved by the Indemnifying status of such Third Party or any judgment in connection with such claim or litigationClaim. The Indemnifying Party indemnifying party shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified Party, or enter into agree to a settlement of any Third Party Claim, unless (A) the settlement (except with the written consent provides an unconditional release and discharge of the Indemnified PartyParty and the Indemnified Party is reasonably satisfied with such discharge and release and (B) which the Indemnified Party shall not have reasonably objected to any such settlement on the ground that the circumstances surrounding the settlement could result in an adverse impact on the business properties or prospects of Amaz▇▇.▇▇▇. ▇▇e Indemnified Party shall cooperate with the indemnifying party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense.
(i) If the indemnifying party does not include as an unconditional term thereof the giving by the claimant or the plaintiff give written notice to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation within 30 days after receipt of the notice from the Indemnified Party of any Third Party Claim of the indemnifying party's election to do soassume the defense or handling of such Third Party Claim, the provisions of Section 8.5(c)(ii) hereof shall govern.
(ii) The Indemnified Party may may, at the indemnifying party's expense (which shall be paid from time to time by the indemnifying party as such expenses are incurred by the Indemnified Party), select counsel in connection with conducting the defense or handling of such Third Party Claim and defend against or handle such claim or litigation Third Party Claim in such manner as it deems may deem appropriate; provided, and unless however, that the Indemnifying Indemnified Party shall deposit keep the indemnifying party timely apprised of the status of such Third Party Claim and shall not settle such Third Party Claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the indemnifying party shall cooperate with the Indemnified Party a sum equivalent and shall be entitled to participate in the total amount demanded in defense or handling of such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, Third Party Claim with its own counsel and at its own expense.
(d) If the Indemnified Party intends to seek indemnification hereunder, other than for a Third Party Claim, then it shall notify the indemnifying party in writing 90 days after its discovery of facts upon which it intends to base its Claim for indemnification hereunder, but the failure or delay so to notify the indemnifying party shall not relieve the indemnifying party of any obligation or liability that the indemnifying party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse have to the Indemnified Party for except to the extent that the indemnifying party demonstrates that the indemnifying party's ability to defend or resolve such Claim is adversely affected thereby.
(e) The Indemnified Party may notify the indemnifying party of a Claim even though the amount thereof plus the amount of such settlement and for all damages incurred other Claims previously notified by the Indemnified Party in connection with aggregate less than the defense against or settlement of such claim or litigationThreshold.
D. The Indemnifying Party (f) At the Closing, the Escrow Shares shall promptly reimburse be deposited in the Indemnified Party for the amount of any judgment rendered with respect Escrow Account to any claim or litigation by a third party in such litigation and for all damage incurred satisfy potential claims by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partyAmaz▇▇.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising ▇▇▇ ▇▇▇emnified Parties under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction DocumentsArticle VIII.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Sources: Merger Agreement (Amazon Com Inc)
Procedure for Indemnification. A. The following provisions shall apply to any Indemnifiable Claims for which an Indemnifying Party may be obligated to indemnify an Indemnified Party pursuant to this Agreement:
(a) upon receipt from a third party by the Indemnified Party of notice of an Indemnifiable Claim or the Indemnified Party becoming aware of an Indemnifiable Claim in respect of which is entitled the Indemnified Party proposes to be indemnified hereunder (demand indemnification from the "INDEMNIFIED PARTY") Indemnifying Party, the Indemnified Party shall promptly give notice hereunder to the party required that effect to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claimwith reasonable promptness, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any that failure of an Indemnified Party to give such notice, or delay by an notice shall not relieve the Indemnifying Party from any liability it may have to the Indemnified Party in giving such notice, unless, and then only except to the extent thatthat the Indemnifying Party is prejudiced thereby;
(b) in the case of Indemnifiable Claims arising from third parties, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result the right by notice to the Indemnified Party not later than 30 days after receipt of the failure notice described in Section 10.3(a) to giveassume the control of the defense, compromise or delay in givingsettlement of the Claims, provided that such notice. Failure assumption shall, by an Indemnifying Party its terms, be without costs to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to and the Indemnifying Party shall at the Indemnified Party's request furnish it with reasonable security against any costs or other liabilities to which it may be deemed a waiver or become exposed by reason of such defense, compromise or settlement;
(c) upon the assumption of control by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigationas aforesaid, the Indemnifying Party shall take all steps necessary in diligently proceed with the defense defense, compromise or settlement of such claim or litigationthe Claims at its sole expense, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out including employment of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff counsel reasonably satisfactory to the Indemnified Party of a release from all liability and, in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soconnection therewith, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriateshall co-operate fully, and unless but at the expense of the Indemnifying Party, to make available to the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus all pertinent information and witnesses under the Indemnified Party's estimate control, make such assignments and take such other steps as in the opinion of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and counsel for the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect are necessary to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if enable the Indemnifying Party fails to promptly reimburse conduct such defense; provided always that the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on reasonable security from the amount Indemnifying Party for any expense, costs or other liabilities to which it may be or may become exposed by reason of such claimco-operation;
(d) the final determination of any such Indemnifiable Claims arising from third parties, which interest including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or invalidity, as the case may be, of such Indemnifiable Claims against the Indemnifying Party hereunder; and
(e) should the Indemnifying Party fail to give notice to the Indemnified Party as provided in Section 10.3(b), the Indemnified Party shall accrue at a rate be entitled to make such settlement of [ * ] per annumthe Claims as in its sole discretion may appear reasonably advisable, and such settlement or any other final determination of the Indemnifiable Claims shall be binding upon the Indemnifying Party.
Appears in 1 contract
Sources: Share Exchange Agreement
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written Upon receipt of notice of any claim as Claim that may give rise to which recovery may be sought against a right of indemnity from the indemnifying party because other Party hereto, the Party seeking indemnification (the “Indemnified Party”) shall give written notice thereof to the other Party, (the “Indemnifying Party”) of the indemnity in Section 1 and Section 2 hereof and, if such Claim for indemnity. Such Claim for indemnity shall arise from indicate the nature of the Claim and the basis therefore. Promptly after a claim of a third partyis made for which the Indemnified Party seeks indemnity, the Indemnified Party shall permit the Indemnifying Party Party, at its option and expense, to assume the complete defense of such Claim, provided, that, (i) the Indemnified Party will have the right to participate in the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, Claim at Seller's its own cost and expense; (ii) the Indemnified Party may assume the complete defense of such claim at the Indemnifying Party’s cost and expense if the Indemnified Party shall have reasonably concluded upon the advice of outside counsel, that there is a conflict of interest between the Indemnified Party and the Indemnifying Party; (iii) the Indemnifying Party will conduct the defense of any claim such Claim with due regard for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding business interests and potential related liabilities of the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, Party; and then only to the extent that, the rights and remedies of (iv) the Indemnifying Party shall have been prejudiced as a result of the failure will, prior to givemaking any settlement, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold consult with the Indemnified Party harmless from and against any and all damages caused by or arising out as to the terms of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationsettlement. The Indemnifying Party shall will not, in the defense of any such claim or any litigation resulting therefromClaim, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, consent to the entry of any judgment or enter into any settlement (except with the written consent of the Indemnified Party) which does not include include, as an unconditional term thereof thereof, the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect thereof. After notice to the Indemnified Party of such claim or litigation.
C. If the Indemnifying Party does not Party’s election to assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do soClaim, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent only be liable to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages reasonable legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense against or settlement thereof at the request of such claim or litigation.
D. The the Indemnifying Party. As to those Claims with respect to which the Indemnifying Party does not elect to assume control of the defense, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and be liable for all damage reasonable legal or other expenses incurred by the Indemnified Party in connection with the defense against thereof and the Indemnified Party will afford the Indemnifying Party an opportunity to participate in such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, defense at the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice Indemnifying Party’s own cost and at its expense, participate in the defense and will not settle or otherwise dispose of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if same without the consent of the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumParty.
Appears in 1 contract
Sources: Biopharmaceutical Manufacturing Services Agreement (Seattle Genetics Inc /Wa)
Procedure for Indemnification. A. The party which is entitled to be indemnified hereunder If any Person shall claim indemnification (the "INDEMNIFIED PARTYIndemnified Party") hereunder for any claim other than a third party claim, the Indemnified Party shall promptly give written notice hereunder to the other party required to indemnify from whom indemnification is sought (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice of the nature and amount of the claim. If an Indemnified Party shall claim indemnification hereunder arising from any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim or demand of a third party, the Indemnified Party shall permit promptly give written notice (a "Third-Party Notice") to the Indemnifying Party to assume of the defense of any basis for such claim and any litigation resulting from such claimor demand, provided that, Buyer setting forth the nature of the claim or Meritage may, demand in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with detail. With respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or no delay by an on the part of the Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of notifying the Indemnifying Party shall have been prejudiced as a result of relieve the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party from any obligation hereunder except to notify an Indemnified the extent that the Indemnifying Party thereby is prejudiced. The Indemnifying Party shall have the right to compromise or, if appropriate, defend at its own cost and through counsel of its election own choosing reasonably satisfactory to the Indemnified Party, any claim or demand giving rise to any such claim for indemnification. In the event the Indemnifying Party undertakes to compromise or defend any such claim or action demand, it shall promptly (and in any event, no later than fifteen (15) days after receipt of a Third-Party Notice) notify the Indemnified Party in writing of its intention to do so and shall give the Indemnifying Party such security in that regard as the Indemnified Party reasonably may request. The Indemnified Party shall fully cooperate with the Indemnifying Party and its counsel in the defense or compromise of such claim or demand. After the assumption of the defense by the Indemnifying Party, the Indemnifying Party shall not be liable for any legal or other expenses subsequently incurred by the Indemnified Party, in connection with such defense, but the Indemnified Party may participate in such defense at its own expense; provided, however, that if such Indemnified Party shall have been advised by counsel that representation of such Indemnified Party by counsel provided by the Indemnifying Party would be inappropriate due to actual or potential conflicting interests between such Indemnified Party and the Indemnifying Party, including situations in which there are one or more legal defenses available to such Indemnified Party that are different or in addition to those available to the Indemnifying Party, then such Indemnifying Party shall remain liable for such expenses. No settlement of a third party within 10 days after notice thereof shall have been given to claim or demand defended by the Indemnifying Party shall be deemed a waiver by made without the Indemnifying Party prior written consent of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with Party, such claim or litigationconsent not to be unreasonably withheld. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the prior written consent of the Indemnified Party, consent to the entry of a judgment or enter into any settlement which (except with the written consent of the Indemnified Partyi) which is for other than solely money damages or (ii) does not include as an unconditional term thereof thereof, the giving by the claimant or the plaintiff to the Indemnified Party of a an unconditional release from all liability in respect of such third party claim or litigationdemand.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The If a party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY"“Obligated Party”) shall promptly give notice hereunder to the party is required to indemnify the other party (the "INDEMNIFYING PARTY"“Indemnified Party”) after obtaining written under the terms of this Agreement, then this Section 4.3 shall govern the procedure with respect to such indemnification. Upon receipt by the Indemnified Party of notice of any claim or matter for which it is entitled to seek indemnification from the Obligated Party under the terms hereof (the “Claim”), the Indemnified Party shall promptly notify the Obligated Party of the Claim. The Obligated Party shall contest and defend against the Claim; provided, however, that the Obligated Party shall not commit, suffer, or permit any act or omission which would cause the Indemnified Party to incur, or expose the Indemnified Party to the incurrence of, any civil fines or criminal penalties. The Obligated Party shall keep the Indemnified Party informed of the progress of the defense against the Claim which shall be diligently pursued. If a final adjudication (i.e., an adjudication with respect to which the time for taking all appeals as of right has lapsed or with respect to which no further appeal is legally available) of such Claim is rendered against the Indemnified Party by a court of competent jurisdiction, the Obligated Party shall, within thirty (30) days after such adjudication becomes final, pay and satisfy such Claim. The Obligated Party shall notify the Indemnified Party in writing within ten (10) business days after an adjudication is rendered as to which recovery whether the Obligated Party will appeal the adjudication. If the Obligated Party notifies the Indemnified Party that it will not appeal an adjudication, then the Indemnified Party may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if undertake such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertakeappeal, at Seller's its sole cost and expense, in which case the defense of any claim for Indemnified Party shall notify the Obligated Party at least ten (10) business days prior to the last date on which Seller the Obligated Party is responsible hereunder required to pay and satisfy the Claim pursuant to this Section 4.3, and the Obligated Party shall within twenty (20) business days after such notification deposit into escrow, with respect a national financial institution or title company reasonably acceptable to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding Indemnified Party and the foregoingObligated Party, the right amount necessary to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give pay and satisfy the Claim. Upon depositing such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent thatamount, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Obligated Party shall be deemed a waiver by released from any further obligation hereunder to pay, satisfy and contest the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigationClaim. The Indemnifying Party escrowed amount shall notbe disbursed and applied as follows: first, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into at any settlement (except with the written consent of time upon demand by the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff , to the Indemnified Party of a release from all liability in respect of be used to pay and satisfy such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party Claim; second, to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount payment or reimbursement of such settlement the reasonable costs and for all damages expenses incurred by the Indemnified Party in connection with prosecuting such appeal; and third, any excess to the defense Obligated Party. If the Obligated Party fails to contest and defend against, or to pay and satisfy the Claim within such thirty (30) days, then the Indemnified Party may, at its option, contest and defend against or settlement of such claim or litigation.
D. The Indemnifying and/or pay and satisfy the Claim, in which case the Obligated Party shall promptly immediately reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in all costs and expenses (such litigation as, but not limited to, actual attorneys’ fees and for all damage disbursements) incurred by the Indemnified Party in connection contesting and defending against and/or paying and satisfying the Claim and enforcing the indemnification, together with interest on such costs and expenses from the time incurred until the time paid at the lower of (i) three percent (3%) in excess of the prime rate announced by Chemical Bank, from time to time, or (ii) the highest rate permitted by law. Each party agrees to cooperate with the defense against such claim reasonable requests of the other party in contesting, defending, paying, satisfying or litigation, whether or not resulting from, arising out of, or incurred appealing an adjudication rendered with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real PropertyClaim. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their optionIf, as a non-exclusive remedyresult of an appeal, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In additioninsurance recovery or otherwise, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party recovers from a third party any amounts with respect to which the Obligated Party made payments to or for the amount account of any valid indemnification claim hereunderthe Indemnified Party under this Article IV, the Indemnifying Indemnified Party shall be entitled promptly pay over to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annumObligated Party any amounts so recovered.
Appears in 1 contract
Procedure for Indemnification. A. The (a) When seeking indemnification pursuant to Section 26.3, the applicable indemnified party which is entitled to be indemnified hereunder (the "INDEMNIFIED PARTY"an “Indemnified Party”) shall promptly give notice hereunder prompt written Notice together with a copy of such claim, process or other legal pleading, or a reasonably detailed description of the Claim, to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the assertion of any claim, or the commencement of any action, suit or proceeding, or the existence of any Claim, in respect of which indemnity is sought hereunder and shall give the indemnifying party such information with respect thereto as the indemnifying party may reasonably request, but no failure to give such notice shall relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party suffers prejudice or damages thereby). Any Indemnified Party and the indemnifying party shall in all other respects use commercially reasonable efforts to cooperate with each other to mitigate the cost of any Claim or Indemnifiable Loss and to settle the same promptly in a mutually satisfactory manner. The payment of any indemnity due to an Indemnified Party pursuant to Section 1 26.3 will be due and Section 2 hereof and, if such indemnity shall arise payable thirty (30) days after the date that the indemnifying party receives notice from the Indemnified Party of the amount of the underlying claim of a third partyand the underlying claim is resolved.
(b) The indemnifying party will have the right to participate in or, shall permit by giving written Notice to the Indemnifying Party Indemnified Party, to elect to assume the defense of any Third Party claim for an Indemnifiable Loss or Claim at such claim indemnifying party’s expense and any litigation resulting from by such claimindemnifying party’s own counsel, provided that, Buyer or Meritage may, that in their discretion, undertake, the event of the indemnifying party’s assumption of the defense (and at Seller's cost and expensethe expense of the Indemnified Party except as provided in subsection (c) below), the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, Indemnified Party shall have the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, participate in the defense of such Third Party claim or any litigation resulting therefrom, consent and to entry of any judgment (other than a judgment of dismissal on employ counsel separate from the merits without costs) except with counsel employed by the written consent of the indemnifying party. The Indemnified Party shall cooperate in good faith in such defense at such Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does ’s own expense. If an indemnifying party elects not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such Third Party claim by a third party or litigation after receipt of notice from the Indemnified Party to do soas provided in this Section 26.4(b), the Indemnified Party may defend against compromise or settle such Third Party claim or litigation in such manner as it deems appropriateover the objection of the indemnifying party.
(c) If, and unless the Indemnifying Party shall deposit with the within twenty (20) days after an Indemnified Party a sum equivalent provides written Notice to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate indemnifying party of the costs of defending the sameany Third Party claim, the Indemnified Party may settle receives written Notice from the indemnifying party that such claim or litigation on such terms as it may deem appropriate and indemnifying party has elected to assume the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount defense of such settlement and Third Party claim as provided in Section 26.4(b), the indemnifying party will not be liable for all damages any legal expenses subsequently incurred by the Indemnified Party in connection with the defense against or thereof; provided that without the prior written consent of the Indemnified Party, the indemnifying party shall not enter into any settlement of any Third Party claim unless such claim or litigation.
D. The Indemnifying Party shall promptly reimburse settlement releases the Indemnified Party for and its Affiliates from liability in connection with such matter and provides relief consisting solely of money damages borne by the amount of any judgment rendered with respect indemnifying party. If a firm offer is made to any settle a Third Party claim or litigation by a third party in and such litigation and for all damage incurred by settlement releases the Indemnified Party from liability in connection with such matter and provides relief consisting solely of money damages borne by the defense against indemnifying party and the indemnifying party desires to accept and agree to such claim or litigation, whether or not resulting from, arising out of, or incurred with respect tooffer, the act of a third party.
E. Anything in this Section 3 indemnifying party shall give written Notice to the contrary notwithstanding, Indemnified Party to that effect. If the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Indemnified Party fails to promptly reimburse consent to such firm offer within ten (10) days after its receipt of such notice, the indemnifying party shall be relieved of its obligations to defend such Third Party claim and the Indemnified Party for the amount of any valid indemnification claim hereundermay contest or defend such Third Party claim. In such event, the Indemnifying maximum liability of the indemnifying party as to such Third Party shall claim will be entitled to interest on the amount of such claim, which interest settlement offer.
(d) Section 26 shall accrue at a rate survive termination of [ * ] per annumthis Agreement.
Appears in 1 contract
Sources: Engineering, Procurement and Construction Agreement
Procedure for Indemnification. A. The respective indemnification obligations of Sustainable Fuels Incorporated on the one hand and Vivakor and the Company on the other pursuant to Section 9.2 shall be conditioned upon compliance by Sustainable Fuels Incorporated on the one hand and Vivakor and the Company on the other with the following procedures for Claims:
(a) The party which is entitled to be indemnified hereunder seeking indemnification under Section 8.2 (the "INDEMNIFIED PARTY"“Aggrieved Party”) shall promptly agrees to give notice hereunder in writing to the party required to indemnify party(ies) from whom indemnity is sought (the "INDEMNIFYING PARTY"“Indemnifying Party”) after obtaining written notice of the assertion of any claim as to Claim or the commencement of any suit, action or proceeding in respect thereof for which recovery indemnity may be sought against the indemnifying party because of the indemnity in under Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the 9.2. The Indemnifying Party to assume may participate in and control the defense of any such claim and any litigation resulting from such claimthird party suit, action or proceeding at its own expense, provided thatthat the Indemnifying Party agrees in writing to be responsible for the full amount of the Aggrieved Party’s Damages attributable to such suit, Buyer action or Meritage may, proceeding. Except as otherwise provided in their discretion, undertake, at Seller's cost and expenseSection 9.3(b), the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder Aggrieved Party shall not settle any Claim in respect of which indemnity may be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to sought hereunder without the extent that, the rights and remedies consent of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or actionParty.
B. (b) If the Indemnifying Party assumes the defense of any such claim Claim or litigationaction or proceeding in respect thereof, the Indemnifying Party (i) it shall take all steps necessary in the defense or settlement of such claim or litigation, thereof and will shall hold the Indemnified Aggrieved Party harmless from and against any and all damages Damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment rendered in connection with such claim Claim, action or litigationproceeding and (ii) the Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim claim, action or any litigation resulting therefromproceeding, consent to the entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except settlement, except, in either event, with the written prior consent of the Indemnified PartyAggrieved Party unless the judgment or settlement (w) which does not include provide for any remedy against the Aggrieved Party other than the payment of money, (x) the Indemnifying Party promptly pays all amounts required thereunder, (y) includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Aggrieved Party of a release from all liability Liability in respect of such claim or litigationlitigation and (z) such judgment or settlement could not be the basis of any claim or action by any third party (whether governmental or otherwise). If the Indemnifying Party assumes the defense of any such Claim or action or proceeding in respect thereof, the Aggrieved Party will have the right to participate in such litigation and to retain its own counsel at such Aggrieved Party’s own expense.
C. (c) If the Indemnifying Party does not assume the defense of any such claim by a third party Claim, action or litigation after receipt of notice from the Indemnified Party to do soproceeding, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent agrees to (i) cooperate and make available to the total amount demanded Aggrieved Party (A) all such books and records that are in such claim the possession or litigation plus the Indemnified Party's estimate control of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse and (B) such officers, employees and agents of the Indemnified Indemnifying Party for the amount of such settlement that are reasonably necessary and for all damages incurred by the Indemnified Party useful in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall and (ii) promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect grant consent to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partyreasonable settlement.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.
Appears in 1 contract
Procedure for Indemnification. A. The procedure for indemnification pursuant to this ARTICLE 10 and SECTION 11.1 (except to the extent of a conflict with Section 11.8, in which case Section 11.8 shall govern) shall be as follows:
(a) It is understood and agreed that a party may be entitled to indemnification, in accordance with the provisions hereof, whether based on a claim directly between the parties or based on a claim brought by a third party. The party which is entitled to be indemnified hereunder claiming indemnification (the "INDEMNIFIED PARTY"“Claimant”) shall promptly give notice hereunder to the party required to indemnify from which indemnification is claimed (the "INDEMNIFYING PARTY"“Indemnifying Party”) after obtaining written notice and, in the case of a claim by a Buyer Indemnified Party against the Indemnity Escrow Funds, the Escrow Agent, of any claim as to which recovery may be sought against claim, whether between the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of parties or brought by a third party, specifying in reasonable detail the factual basis for the claim and the amount thereof, if reasonably practicable and estimated in good faith, and containing a reference to the provision(s) of this Agreement under which such indemnification claim is made. If the claim relates to an Action by a third party against Claimant (a “Third Party Action”), such notice shall permit be given by Claimant within a reasonable period of time after Claimant receives notice of such Third Party Action, which in any event shall be no later than 20 Business Days after Claimant receives written notice of such Third Party Action. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party to assume the defense of any such claim its indemnification obligations, except and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent thatthat the Indemnifying Party forfeits rights or defenses by reason of such failure.
(b) With respect to claims solely between the parties, following receipt of notice from the rights and remedies Claimant of a claim, the Indemnifying Party shall have been prejudiced as a result up to 20 days to make such investigation of the failure to give, or delay in giving, such notice. Failure by an claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given make available to the Indemnifying Party shall be deemed a waiver by and its authorized representatives such documents and other information relating to the claim as the Indemnifying Party of its right to defend such claim or action.
B. may reasonably request. If the Claimant and the Indemnifying Party assumes agree at or prior to the defense expiration of such claim 20-day period (or litigationany mutually agreed upon extension thereof) to the validity and amount of such claim, the Indemnifying Party shall take all steps necessary immediately pay to the Claimant the full amount agreed to, subject to the terms hereof (including Sections 10.2(b) and 10.3(b)), including where Seller is the Indemnifying Party and the claim is to be satisfied by Indemnity Escrow Funds, by executing and delivering written instructions to the Escrow Agent to pay the full amount so agreed from the Indemnity Escrow Funds. If the Claimant and the Indemnifying Party do not agree within such 20-day period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate remedies at law or equity, as applicable, to enforce its claim for indemnification hereunder, subject to the applicable limitations of Sections 10.2(b) and 10.3(b).
(c) The Claimant will be entitled, at the sole expense and liability of the Indemnifying Party and subject to the other terms and conditions herein, to exercise full control of the defense, compromise and settlement of any Third Party Action, unless (i) the Indemnifying Party, promptly after the giving of notice of the Third Party Action by the Claimant to the Indemnifying Party (but in no event later than 15 days thereafter), notifies the Claimant in writing of the Indemnifying Party’s intention to assume such defense, acknowledges its obligation to indemnify the Claimant for Losses related to such Third Party Action, and promptly thereafter, retains legal counsel reasonably satisfactory to the Claimant to conduct the defense of such Third Party Action, (ii) the Third Party Action involves only money damages and does not seek an injunction or other equitable relief against the Claimant, (iii) the Third Party Action does not relate to or otherwise arise in connection with any criminal or regulatory enforcement action, and (iv) the Indemnifying Party conducts the defense of the Third Party Action diligently. In the event that the Indemnifying Party does not, within fifteen (15) days of its receipt of notice of a Third Party Action pursuant to subclause (i) above of this Section 10.4(c), elect to undertake such defense, Claimant may undertake the defense, opposition, compromise or settlement of such claim or litigation, and will hold the Indemnified Third Party harmless from and against any and all damages caused Action with counsel selected by or arising out of any settlement approved by it at the Indemnifying Party’s cost. If the Claimant defends any Third Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff Action pursuant to the Indemnified Party preceding sentence or pursuant to subclauses (ii) – (iv) above of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do sothis Section 10.4(c), the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and then the Indemnifying Party shall promptly reimburse the Indemnified Party Claimant for the amount reasonable costs and expenses of defending such settlement and for all damages incurred by Third Party Action upon submission of periodic bills.
(d) Each party will cooperate with the Indemnified Party other party in connection with the defense against defense, compromise or settlement of such claim or litigation.
D. The any Third Party Action in accordance with this Agreement in any manner that reasonably may be requested. If the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation so assumes and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in prosecutes the defense of any such claim Third Party Action in accordance with Section 10.4(c), the Claimant will have the right to employ separate counsel and to participate in (but not control) the defense, compromise or litigationsettlement of the Third Party Action, but the fees and expenses of such counsel will be at the expense of the Claimant, unless (i) the Indemnifying Party has agreed to pay such fees and expenses or (ii) the Claimant has been advised by its legal counsel that there may be one or more defenses available to it which are different from or additional to those available to the Indemnifying Party or that an actual or potential conflict of interest would make the representation of both the Indemnifying Party and the Claimant by the same counsel inadvisable, and in any such case the reasonable fees and expenses of such separate counsel shall be paid by the Indemnifying Party.
F. Buyer and Meritage may at their option set-off (e) No Claimant will settle or compromise any of Seller's such Third Party Action for which it is entitled to indemnification obligations arising under this Agreement against without the Future Land Profit component prior written consent of the purchase price for Indemnifying Party, such consent not to be unreasonably withheld, delayed or conditioned. Except as otherwise provided in this Section 10.4(e), an Indemnifying Party shall not settle or compromise any Third Party Action without the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all prior written consent of the Optioned Real Property pursuant to the Option AgreementClaimant, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement consent not to be entered into is attached unreasonably withheld, delayed or conditioned. An Indemnifying Party may settle or compromise any Third Party Action without such consent so long as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails (i) receives a firm offer to promptly reimburse settle such Third Party Action without leading to liability or the Indemnified Party for creation of a financial or other obligation on the amount part of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annum.Claimant,
Appears in 1 contract
Sources: Purchase Agreement (E.W. SCRIPPS Co)
Procedure for Indemnification. A. The Each party which is entitled to be indemnified hereunder under subsection (a) or (b) of this Section 3.06 (the "INDEMNIFIED PARTYIndemnified Party") shall shall, promptly give after receipt of actual notice hereunder to of any claim or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought, notify the party required to indemnify provide indemnification (the "INDEMNIFYING PARTYIndemnifying Party") after obtaining written notice in writing of the claim or the commencement thereof, provided that the failure of the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any claim as liability which it may have to which recovery may be sought against the indemnifying party because an Indemnified Party on account of the indemnity agreement contained in subsection (a) or (b) of this Section 1 3.06, unless the Indemnifying Party was materially prejudiced by such failure, and Section 2 hereof in no event shall relieve the Indemnifying Party from any other liability which it may have to such Indemnified Party. If any such claim or action shall be brought against an Indemnified Party, it shall notify the Indemnifying Party thereof and the Indemnifying Party shall be entitled to participate therein, and, if such indemnity shall arise to the extent that it wishes, jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes assume the defense of such claim or litigationaction, the Indemnifying Party shall take all steps necessary in not be liable (except to the defense or settlement of such claim or litigation, and will hold extent the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall notproviso to this sentence is applicable, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costswhich event it will be so liable) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim under this Section 3.06 for any legal or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages other expenses subsequently incurred by the Indemnified Party in connection with the defense against or settlement thereof other than reasonable costs of such claim or litigation.
D. The Indemnifying investigation; provided that each Indemnified Party shall promptly reimburse have the Indemnified Party for the amount of any judgment rendered with respect right to any claim or litigation by a third party employ separate counsel to represent it and assume its defense (in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse the Indemnified Party for the amount of any valid indemnification claim hereunderwhich case, the Indemnifying Party shall be entitled to interest on not represent it) if (i) upon the amount advice of such claimcounsel, which interest shall accrue at a rate the representation of [ * ] per annum.both parties by the same counsel would be
Appears in 1 contract
Sources: Shareholder Agreement (First Reserve Corp /Ct/ /Adv)
Procedure for Indemnification. A. The (a) If any third party which is entitled shall notify a party to be indemnified hereunder this Agreement (the "INDEMNIFIED PARTYIndemnified Party") shall promptly give notice hereunder to the party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in Section 1 and Section 2 hereof and, if such indemnity shall arise from the claim of a third party, shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lotsmatter (a "Third Party Claim") that may give rise to a claim for indemnification against any other party to this Agreement (the "Indemnifying Party") or if any party who may make a claim for indemnification under this Agreement otherwise becomes aware of any matter that may give rise to such a claim or wishes to make such a claim (whether or not related to a Third Party Claim), landthen the Indemnified Party shall promptly notify each Indemnifying party thereof in writing; provided, rights however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding extent) the foregoing, Indemnifying Party is thereby prejudiced.
(b) Any Indemnifying Party will have the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigation, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against any and all damages caused by or arising out a Third Party Claim with counsel of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff its choice satisfactory to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If so long as (i) the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from notifies the Indemnified Party to do soin writing within a reasonable time after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any adverse consequences (which will include, without limitation, all losses, claims, liens, and attorneys' fees and related expenses) the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not suffer resulting from, arising out of, relating to, in the nature of, or incurred caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only monetary damages and does not seek an injunction or equitable relief or involve the possibility of criminal penalties, (iv) settlement of, or adverse judgment with respect to the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 7.6(b) above, (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (ii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (which will not be unreasonably withheld) and (iii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (which will not be unreasonably withheld).
(d) In the event or to the extent that any of the conditions set forth in Section 7.6(b) above is or becomes unsatisfied, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the act of a third party.
E. Anything Third Party Claim and any matter it may deem appropriate in this Section 3 to its sole discretion and the contrary notwithstanding, the party Indemnified Party need not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profitconsult with, or such lesser portion that is then otherwise payableobtain any consent from, any Indemnifying Party in connection therewith (the "HOLDBACK AMOUNT") but will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if keep the Indemnifying Party fails to promptly reasonably informed regarding the progress and anticipated cost thereof), (ii) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the amount cost of defending against the Third Party Claim (including attorneys' fees and expenses) and (iii) the Indemnifying Party will remain responsible for any valid indemnification claim hereunderadverse consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Article 7; and (iv) the Indemnifying Party shall be entitled deemed to interest on have waived any claim that its indemnification obligation should be reduced because of the amount of such claim, manner in which interest shall accrue at a rate of [ * ] per annumthe counsel for the Indemnified Party handled the Third Party Claim.
Appears in 1 contract
Sources: Purchase and Sale of Assets Agreement (U S Liquids Inc)
Procedure for Indemnification. A. The party (a) If any person who or which is entitled to be indemnified hereunder seek indemnification under Section 13.2 or 13.3 (the an "INDEMNIFIED PARTYIndemnified Party") shall promptly give receives notice hereunder of the assertion or commencement of any claim, demand, action, suit or proceeding made or brought by any person who or which is not a party to the party required to indemnify this Agreement (the a "INDEMNIFYING PARTYThird Party Claim") against such Indemnified Party with respect to which the person against whom or which such indemnification is being sought (an "Indemnifying Party") is obligated to provide indemnification under this Agreement, the Indemnified Party shall give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after obtaining receipt of such written notice of any claim as to which recovery such Third Party Claim. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all available material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sought against sustained by the indemnifying party because Indemnified Party. The Indemnifying Party shall have the right to participate in, or, by giving written notice to the Indemnified Party, to assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the indemnity Indemnified Party), and the Indemnified Party shall cooperate in Section 1 and Section 2 hereof andgood faith in such defense.
(b) If, if such indemnity shall arise from the claim within 30 days after giving notice of a third partyThird Party Claim to an Indemnifying Party, shall permit an Indemnified Party receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of any such claim and any litigation resulting from such claim, provided that, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, the defense of any claim for which Seller is responsible hereunder with respect to any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Property. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Third Party to give such notice, or delay by an Indemnified Party in giving such notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within 10 days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. If the Indemnifying Party assumes the defense of such claim or litigationClaim, the Indemnifying Party shall take all steps necessary in the defense or settlement of such claim or litigation, and will hold the Indemnified Party harmless from and against not be liable for any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation.
C. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation after receipt of notice from the Indemnified Party to do so, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all damages legal expenses subsequently incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation.
D. The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all damage incurred by the Indemnified Party in connection with the defense against such claim or litigationthereof; provided, whether or not resulting fromhowever, arising out of, or incurred with respect to, the act of a third party.
E. Anything in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
F. Buyer and Meritage may at their option set-off any of Seller's indemnification obligations arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT"i) will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amount) or any of the Transaction Documents.
G. The parties agree that if the Indemnifying Party fails to promptly reimburse take reasonable steps necessary to defend diligently such Third Party Claim within 30 days after receiving written notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all Damages relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party shall be liable for all reasonable costs and expenses paid or incurred in connection therewith; and (ii) the Indemnified Party may employ separate counsel, and the Indemnifying Party shall bear the reasonable expenses of such separate counsel, if in the written opinion of counsel to the Indemnified Party use of counsel of the Indemnifying Party's choice would be expected to give rise to a conflict of interest. Without the prior written consent of the Indemnified Party, the Indemnifying Party shall not enter into any settlement of any Third Party Claim that would lead to loss, liability or create any financial or other obligation on the part of the Indemnified Party for which the amount Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or does not include an unconditional release of all Indemnified Parties.
(c) Any claim by an Indemnified Party on account of Damages that does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any valid indemnification claim hereunderevent not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all available material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have a period of 30 days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 30-day period, the Indemnifying Party shall be entitled deemed to interest on the amount of have rejected such claim, in which interest event the Indemnified Party shall accrue at a rate be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of [ * ] per annumthis Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in this Section
Appears in 1 contract
Sources: Asset Purchase Agreement (American Tonerserv Corp.)
Procedure for Indemnification. A. The Subject to the rights of offset in this Agreement, in the event a party which is entitled intends to be indemnified hereunder seek indemnification pursuant to the provisions of Section 9.1 or 9.2 hereof (the "INDEMNIFIED PARTY") ), the Indemnified Party shall promptly give notice hereunder to the other party required to indemnify (the "INDEMNIFYING PARTY") after obtaining written notice of any claim claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or proceeding in any action instituted against the Indemnified Party as to which recovery or other action may be sought against the indemnifying party Indemnifying Party because of the indemnity indemnification provided for in Section 1 and Section 2 hereof 9.1 or 9.2 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; PROVIDED, provided thatHOWEVER, Buyer or Meritage may, in their discretion, undertake, at Seller's cost and expense, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim for which Seller is responsible hereunder or litigation which, if not first paid, discharged or otherwise complied with, would with respect to substantial certainty result in a material interruption or disruption of the business of the Indemnified Party, taken as a whole, or any lots, land, rights to purchase lots or land, project or subdivision within the Owned Real Propertymaterial part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an the Indemnified Party to give such notice, notice (or by delay by an the Indemnified Party in giving such notice, ) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by an the Indemnifying Party to notify an the Indemnified Party of its election to defend any such claim or action by a third party within 10 twenty (20) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
B. . If the Indemnifying Party assumes the defense of such claim claim, investigation or litigationproceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or proceeding shall take include taking all steps necessary in the defense or settlement of such claim claim, investigation or litigation, proceeding and will hold holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim claim, investigation or litigationproceeding, except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnifying Party shall not, in the defense of such claim or any litigation proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified Party)(which consent shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any violation of law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party, (ii) which does not the sole relief provided is monetary damages, and (iii) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of to such claim or litigation.
C. . If the Indemnifying Party assumes the defense of such claim, investigation or proceeding resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim, but solely by observation and comment to the Indemnifying Party, and the counsel selected by the Indemnified Party shall not appear on its behalf in any proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless either of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; or (ii) the Indemnifying Party's legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party, but in no event shall the Indemnifying Party be obligated to pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action or proceeding in any one jurisdiction. If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the Indemnified Party to do soParty, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the costs cost (including attorneys' fees) of defending the same, the Indemnified Party may settle such claim or litigation proceeding on such terms as it may reasonably deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all costs (including attorneys' fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim, investigation or litigation, or if any such claim or litigation.
D. The litigation is not so settled, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim or litigation by a third party in such litigation and for all costs (including attorneys' fees), expenses and damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
E. Anything . Each party shall cooperate in this Section 3 to the contrary notwithstanding, the party not primarily responsible for the defense of a claim or litigation may, good faith and in all respects with counsel of each Indemnifying Party and its choice and at representatives (including without limitation its expense, participate counsel) in the investigation, negotiation, settlement, trial and/or defense of any such claim or litigation.
F. Buyer proceedings (and Meritage may at their option set-off any of Seller's indemnification obligations appeal arising under this Agreement against the Future Land Profit component of the purchase price for the Optioned Real Property. Any such set-off will be against future lot takedowns by Buyer until such indemnification obligations are satisfied. In addition, Buyer and Seller agree that if Buyer elects to acquire substantially all of the Optioned Real Property pursuant to the Option Agreement, Buyer's final [ * ]payment of the Future Land Profit, or such lesser portion that is then otherwise payable, (the "HOLDBACK AMOUNT") will be placed into escrow at such time payment is due under the Option Agreement. The Holdback Amount will be placed into an escrow account at a bank or trust company mutually acceptable to Buyer and Colonial [ * ]. Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under this Agreement against the Holdback Amount. The form of the escrow agreement to be entered into is attached as EXHIBIT A to this Agreement. In addition, Buyer and Meritage may at their option, as a non-exclusive remedy, set-off any of Seller's indemnification obligations arising under Section 1E of this Agreement against any amounts payable under the Master Agreement, the Option Agreement (including but not limited to the Holdback Amounttherefrom) or any of the Transaction Documents.
G. claim. The parties agree that if shall cooperate with the Indemnifying Party fails other in any notifications to promptly reimburse the Indemnified Party for the amount and information requests of any valid indemnification claim hereunder, the Indemnifying Party shall be entitled to interest on the amount of such claim, which interest shall accrue at a rate of [ * ] per annuminsurers.
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