Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee. (b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party. (c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration. (d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 2 contracts
Sources: Contribution Agreement (Martin Midstream Partners Lp), Contribution Agreement (Martin Midstream Partners Lp)
Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise for indemnification under Section 10.1, with the exception of claims for litigation expenses in respect of litigation as to which a notice of claim, as provided in this Section 10.2, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2ongoing basis, the party seeking entitled to indemnification (the “Indemnitee”"Indemnified Party") shall promptly provide notice notify the party from which indemnification is sought (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”). Providing the Notice ") of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereundersuch claim and, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofwhen known, the Indemnifying Party shall be entitled to participate therein and, to facts constituting the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to basis for such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationclaim; provided, however, that if in the Indemnitee reasonably believes that counsel event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party cannot represent both later than ten business days prior to the Indemnitee time any response to the asserted claim is required, if possible, and in any event within five business days following receipt of notice thereof. Failure to give timely notice or to include any specified information in any notice required by this Section 10.2 will not affect the Indemnifying Party because rights or obligations of any party hereunder except and only to the extent that, as a result of such representation would be reasonably likely failure, any party which was entitled to result in a conflict receive such notice was deprived of interest, then the Indemnitee shall have the its right to defend, at the sole cost and expense recover any payment under its applicable insurance coverage or was otherwise damaged as a result of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liabilityfailure. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense event of any such claim for indemnification resulting from or litigation, shall, except in connection with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such a claim or litigation or that does not solely require the payment of money damages legal proceeding by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claimthird party, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under may, at its sole cost and expense, assume the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice defense thereof using counsel who is reasonably satisfactory to the Indemnitee (the “Contest Notice”)Indemnified Party; provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join first have agreed in writing that it does not and will not contest its responsibility for indemnifying the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.Indemnified
Appears in 2 contracts
Sources: Securities Purchase Agreement (Kevco Partners Investment Trust), Securities Purchase Agreement (Kevco Inc)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Any claim under SECTION 3.05, SECTION 4.01 or SECTION 4.02 or any other Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice this Agreement on account of a Loss which does not result from a Third Party Claim shall be a condition precedent to any Liability asserted by written notice given by or on behalf of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and an Indemnitee to the extent that such failure materially prejudices the relevant Indemnifying Party hereunderParty. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Such Indemnifying Party shall be entitled have a period of 30 calendar days after the receipt of such notice within which to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to respond thereto. If any such Indemnitee and, after notice from the claim is not paid in full by an Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred within 30 calendar days after written notice has been received by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action Indemnitee and Indemnifying Party shall negotiate in good faith for a reasonable period of time to settle such amount claimed; PROVIDED, HOWEVER, that such reasonable period shall not, unless otherwise agreed by all appropriate proceedingssuch Indemnitee and Indemnifying Party in writing, exceed 45 calendar days from the time they began such negotiations; PROVIDED, FURTHER, that if such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. The Indemnitee agrees to reasonably cooperate with may, but need not, at any time thereafter bring an Action against the Indemnifying Party and its counsel to recover the unpaid amount of the claim and, if successful in the defense against any such asserted liability. In any eventwhole or in part, the Indemnitee also shall have be entitled to be paid the right to participate at its own expense expenses of prosecuting such claim; PROVIDED, HOWEVER, that in the defense of such asserted liability. No Indemnifying Party, in the defense event of any such claim or litigationAction, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of neither the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, nor the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under assert the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice defenses of Claim is submitted to the Indemnifying Party the amount statute of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases limitations and laches arising for the objection of period beginning after the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth date they began negotiations hereunder as provided in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partypreceding sentence.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 2 contracts
Sources: Distribution Agreement (Hussmann International Inc), Distribution Agreement (Midas Group Inc)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the a party seeking indemnification (the “IndemniteeIndemnified Party”) shall claim to have suffered a Loss for which indemnification is available under Section 8.2 or 8.3, as the case may be, the Indemnified Party shall promptly provide notice (notify the “Notice of Claim”) to the other party or parties obligated to provide responsible for indemnification under this Article VIII (the “Indemnifying Party”) in writing of such claim which written notice shall describe the nature of such claim, the facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the time such claim is made (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party) (such notification being the “Claim Certificate”). Providing In the Notice of Claim shall be a condition precedent to any Liability of event that within thirty (30) days after the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve receipt by the Indemnifying Party of its obligations hereunder but only if and to such a written notice from the extent that such failure materially prejudices Indemnified Party, the Indemnified Party shall not have received from the Indemnifying Party hereunder. In case any a written objection to such action claim, such claim shall be brought against any Indemnitee conclusively presumed and it shall provide a Notice of Claim considered to have been assented to and approved by the Indemnifying Party following receipt by the Indemnifying Party of a written notice from the commencement thereofIndemnified Party to such effect.
(b) If an Indemnifying Party objects to the indemnification of an Indemnified Party in respect of any claim or claims specified in any Claim Certificate, the Indemnifying Party shall be entitled deliver a written notice to participate therein and, such effect to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, Indemnified Party within thirty (30) days after notice from receipt by the Indemnifying Party to such Indemnitee of such election so to assume the defense thereofClaim Certificate. Thereafter, the Indemnifying Party and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective parties for a period of not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred less than thirty (30) days after receipt by the Indemnitee, in connection Indemnified Party of such written objection with the defense thereof other than reasonable costs respect to each of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for such claims to which the Indemnifying Party cannot represent both has objected. If the Indemnitee Indemnified Party and the Indemnifying Party because agree with respect to any of such representation would be reasonably likely to result in a conflict of interestclaims, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Indemnified Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or promptly prepare and sign a memorandum setting forth such shorter period as may be appropriate under agreement. Should the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to Indemnified Party and the Indemnifying Party the fail to agree as to any particular item or items or amount of the Loss in respect thereof has not yet been determinedor amounts (each, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of LiabilityDisputed Claim”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 30-day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, then either party shall be deemed established and accepted by the Indemnifying Partyentitled to pursue its available remedies for resolving its claim for indemnification.
(c) If An Indemnifying Party shall promptly reimburse an Indemnified Party for all Losses under a claim, or Buyer may offset amounts due to Buyer or its Affiliates as an Indemnified Party against amounts due to Seller under the Note, after thirty (30) days passes from the receipt of a Claim Certificate by the Indemnified Party without objection by the Indemnifying Party fails to assume the defense of such Claim or, having assumed in the defense and settlement of such Claimevent a claim is disputed, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost resolution of the Indemnifying Indemnified Party, ’s claim is reached under the defense and settlement terms of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationSection 8.4(b).
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 2 contracts
Sources: Purchase Agreement (Energy & Power Solutions, Inc.), Purchase Agreement (Energy & Power Solutions, Inc.)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a party seeking indemnification for any Loss (aincluding, but not limited to attorneys fees) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 11.2 or 5.211.3 hereof, as applicable, and the term "Indemnifying Party" means the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties who is obligated to provide indemnification (the “Indemnifying Party”)under Section 11.02 or 11.3, as applicable. Providing the Notice of Claim shall be a condition precedent The Indemnified Party agrees to any Liability of give the Indemnifying Party hereunderprompt written notice of any event, and the failure or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim") of which it has knowledge, for which such Indemnified Party is entitled to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunderindemnification under this Article 11. In the case any such action shall be brought against any Indemnitee and it shall provide of a Notice of Claim to the Indemnifying Third Party of the commencement thereofClaim, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall will have the right to defenddirect, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense. In such case, the sole cost and expense Indemnified Party may participate in such defense, but in such case the expenses of the Indemnifying Indemnified Party will be paid by the Indemnified Party, such action by all appropriate proceedings. The Indemnitee agrees Indemnified Party will promptly provide the Indemnifying Party with access to reasonably the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense or settlement of such asserted liabilityThird Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. No Indemnifying Party, in Upon assumption of the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages Third Party Claim by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the IndemniteeIndemnified Party, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee which consent will not be unreasonably withheld, delayed or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claimconditioned. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim orpursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, having assumed then the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) Indemnified Party will give the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, prompt written notice thereof and the Indemnifying Party shall pay will have the right to participate in the Indemnitee, immediately upon demand, interest at settlement or assume or reassume the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment defense of such delinquent sums, which interest shall be considered to be Losses of the IndemniteeThird Party Claim.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Epic Energy Resources, Inc.), Stock Purchase Agreement (Epic Energy Resources, Inc.)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Whenever a Claim shall arise for indemnification under Section 5.1 or 5.29.02, the party seeking Person entitled to indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice (notify in writing the “Notice of Claim”) to the other party or parties obligated to provide Party from which indemnification is sought (the “Indemnifying Party”). Providing ) of such Claim and, when known, the Notice facts constituting the basis of such Claim, provided that in the event of a Claim for indemnification resulting from or in connection with a Claim by a third party, the Indemnified Party shall be a condition precedent give such written notice thereof to any Liability of the Indemnifying Party hereundernot later than ten (10) Business Days prior to the time any response to the third party Claim is required, if possible, and the in any event within fifteen (15) Business Days following receipt of notice thereof (provided, that failure to provide prompt notice as provided herein will timely notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only if and any liability it may have to the Indemnified Party, except to the extent that such failure materially prejudices the Indemnifying Party hereunderhas been actually prejudiced by such failure). In case Following receipt of notice of any such action third party Claim, and unless counsel to the Indemnified Party shall be brought against any Indemnitee and it shall provide a Notice have reasonably determined in good faith that the assumption of Claim to such defense by the Indemnifying Party would be inappropriate due to a conflict of the commencement thereofinterest, the Indemnifying Party shall be entitled to participate therein andhave the option, to the extent that it shall wishat its cost and expense, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so matter and to assume retain counsel (not reasonably objected to by the defense thereofIndemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party shall not be liable to the Indemnitee hereunder Indemnified Party for any legal expenses fees of other counsel or any other expenses, in each case subsequently incurred by expenses (except as expressly provided to the Indemnitee, in connection contrary herein) with respect to the defense thereof of such Claim, other than reasonable costs fees and expenses of investigation; provided, however, that if counsel employed by the Indemnitee reasonably believes that counsel Indemnified Party for any period during which the Indemnifying Party canhas not represent both assumed the Indemnitee and the Indemnifying defense thereof. The Indemnified Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnifying Indemnified Party) with its own counsel and counsel for each Party shall, to the extent consistent with such action by all appropriate proceedings. The Indemnitee agrees to reasonably counsel’s professional responsibilities, cooperate with the Indemnifying other Party and its any counsel in the defense against any such asserted liabilitydesignated by that Party. In any eventeffecting the settlement or compromise of, or consenting to the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into with respect to, any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present atClaim, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereofIndemnified Party, by written notice to as the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Losscase may be, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim act in good faith, shall consult with the Indemniteeother Party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other Party shall consent, without waiving its right such consent not to indemnificationbe unreasonably withheld, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the conditioned or delayed. An Indemnifying Party shall not be permitted to join liable for any settlement, compromise or judgment not made in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate accordance with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationpreceding sentence.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Calpine Corp), Purchase and Sale Agreement (Xcel Energy Inc)
Procedures for Indemnification. Any indemnification or advance of expenses (aincluding attorneys’ fees, costs and charges) If there occurs an under this Agreement shall be made promptly, and in any event within 30 days upon the written request of the Indemnitee (and, in the case of advance of expenses, receipt of a written undertaking by or on behalf of Indemnitee to repay such amount if it shall ultimately be determined that either party asserts Indemnitee is an indemnifiable event not entitled to be indemnified therefor pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice terms of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”this Agreement). Providing The right to indemnification or advances as granted by this Agreement shall be enforceable by the Notice Indemnitee in any court of Claim competent jurisdiction, if the Company denies such request, in whole or in part, or if no disposition thereof is made within 30 days. Such person’s costs and expenses incurred in connection with successfully establishing his/her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Company. It shall be a condition precedent defense to any Liability such action (other than an action brought to enforce a claim for the advance of expenses (including attorney’s fees, costs and charges) under this Agreement where the Indemnifying Party hereunderrequired undertaking, and if any, has been received by the failure to provide prompt notice Company) that the claimant has not met the standard of conduct set forth in the DGCL, as provided herein will relieve the Indemnifying Party same exists or hereafter may be amended (but, in the case of its obligations hereunder but any such amendment, only if and to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment), but the burden of proving such defense shall be on the Company. Neither the failure materially prejudices of the Indemnifying Party hereunder. In Company (including the Board, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, as the same exists or hereafter may be amended (but, in the case of any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofamendment, the Indemnifying Party shall be entitled to participate therein and, only to the extent that it shall wish, such amendment permits the Company to assume provide broader indemnification rights than said law permitted the defense thereof, with counsel reasonably satisfactory Company to provide prior to such Indemnitee andamendment), after notice from nor the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred fact that there has been an actual determination by the IndemniteeCompany (including the Board, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that its independent legal counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in stockholders) that the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof claimant has not yet been determined, met such 20 day period in respect of, but only in respect applicable standard of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liabilityconduct, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the a defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at action or create a presumption that the rate claimant has not met the applicable standard of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeconduct.
Appears in 2 contracts
Sources: Indemnification Agreement (GT Advanced Technologies Inc.), Indemnification Agreement (GT Solar International, Inc.)
Procedures for Indemnification. (a) If there occurs an event The party that either party asserts is an indemnifiable event pursuant may be entitled to Section 5.1 or 5.2, the party seeking indemnification indemnity hereunder (the “IndemniteeIndemnified Party”) shall promptly provide give prompt notice (the “Notice of Claim”) to the other any party or parties obligated to provide indemnification give indemnity hereunder (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability ) of the Indemnifying assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party hereunder, and to give the failure to provide prompt notice as provided herein will described in this Section 11.6(a) shall relieve the Indemnifying Party of its obligations hereunder but under this Article XI only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee has been prejudiced by the lack of timely and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent adequate notice (except that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the IndemniteeIndemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) days thereof) after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party cannot represent both the Indemnitee and the relating to such claim, action, suit or proceeding.
(b) The Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right but not the obligation to defendassume the defense or settlement of any third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder, provided that (i) the Indemnified Party shall at all times have the right, at its or his option and expense, to participate fully therein, provided that such defense shall remain under the sole cost and expense control of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with and, (ii) if the Indemnifying Party and its counsel in does not proceed diligently to defend the defense against any third-party claim, suit, action or proceeding within twenty (20) days after receipt of notice of such asserted liability. In any eventthird-party claim, suit, action or proceeding, the Indemnitee Indemnified Party shall have the right right, but not the obligation, to participate at its own expense in undertake the defense of such asserted liability. No Indemnifying Party, in the defense at his expense of any such claim third-party claim, suit, action or litigationproceeding.
(c) The Indemnifying Party shall not be required to indemnify the Indemnified Party with respect to any amounts paid in settlement of any third-party suit, shallaction, except with proceeding or investigation entered into without the written consent of each Indemniteethe Indemnifying Party, provided that if the Indemnifying Party gives ten (10) days’ prior written notice to the Indemnified Party of a settlement offer which the Indemnifying Party desires to accept and to pay all Losses with respect thereto (“Settlement Notice”) and the Indemnified Party fails or refuses to consent to such settlement within ten (10) days after delivery of the Settlement Notice to the Indemnified Party, and such settlement otherwise complies with the provisions of this Section 11.6 the Indemnifying Party shall not be liable for Losses arising from such third-party suit, action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the IndemniteeIndemnified Party, settle if such judgment or settlement imposes any Claim on terms that provide for (i) a criminal sanction against obligation or liability upon the Indemnitee Indemnified Party other than the execution, delivery or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt approval thereof and customary releases of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation claims with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationmatter thereof.
(d) The Indemnifying Party Parties shall make cooperate in defending any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentthird-party suit, action, proceeding or investigation, and the defending Party shall have reasonable access to the books and records, and personnel in the possession or control of the other Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party shall pay in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the Indemnitee, immediately upon demand, interest at the rate purpose of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses enforcing any right of the Indemniteeindemnity granted to such Indemnified Party pursuant to this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nuevo Energy Co), Stock Purchase Agreement (Nuevo Energy Co)
Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise for indemnification under Section 12.1 above, with the exception of claims for litigation expenses in respect of a litigation as to which a notice of claim, as provided below in this Section 12.2, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2ongoing basis, the party seeking entitled to indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice (notify the “Notice of Claim”) to the other party or parties obligated to provide from whom indemnification is sought (the “Indemnifying Party”). Providing ) of such claim and, when known, the Notice facts constituting the basis for such claim; provided, however, that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall be a condition precedent give such notice thereof to any Liability of the Indemnifying Party hereundernot later than ten (10) business days prior to the time any response to the asserted claim is required, if possible, and in any event within five (5) business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to provide prompt notice as provided herein will so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only from any liability for indemnification it may have if and to the extent that such failure materially prejudices the Indemnifying Party hereundershall not have been prejudiced by such omission. In case the event of any such action shall be brought against any Indemnitee and it shall provide claim for indemnification resulting from or in connection with a Notice of Claim to claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof; provided, however, that the Indemnifying Party shall first have agreed in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses attributable to such claim or Legal Proceeding; and, provided further, that Seller shall not be entitled to assume the commencement thereofdefense of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Closing Date. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein andselect counsel and take all steps necessary in the defense thereof; provided, however, that no settlement shall be made without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the extent proposed amount of such settlement); provided, further, that it the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall wishnot compromise or settle such claim without the prior written consent of the Indemnifying Party, to which consent shall not be unreasonably withheld. If the Indemnifying Party does not assume the defense thereofof any such claim or Legal Proceeding in accordance with the terms hereof, with counsel reasonably satisfactory to such Indemnitee the Indemnified Party may defend (and, in the case of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Closing Date, shall defend) against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice from of the same to the Indemnifying Party to and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld) on such Indemnitee of such election so to assume terms as the defense thereofIndemnified Party may deem appropriate, and the Indemnifying Party shall not be liable to will promptly indemnify the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, Indemnified Party in each case subsequently incurred by the Indemnitee, in connection accordance with the defense thereof other than reasonable costs provisions of investigationthis Section 12.2; provided, however, that if the Indemnitee reasonably believes that counsel for Indemnified Party does not obtain the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the prior written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claimany such settlement, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes such written consent is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted not unreasonably withheld by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of Indemnified Party shall not be entitled to indemnification hereunder from such Claim; providedIndemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 12.2 to the contrary, howeverif, that in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 12.2, (i) the Indemnifying Party shall be permitted not have promptly employed counsel reasonably satisfactory to join in the defense and settlement of such Claim and to employ counsel at its own expense, Indemnified Party or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall cooperate with not have the Indemnitee in right to direct the defense and settlement of any such Claim in any manner reasonably requested action on behalf of the Indemnified Party. All payments by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required pursuant to be made under this Article XII shall be in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, in immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeavailable funds.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Hollywood Media Corp), Asset Purchase Agreement (Hollywood Media Corp)
Procedures for Indemnification. (a1) If there occurs an event that either a Buyer Indemnified Party or Seller Indemnified Party receives notice or otherwise obtains knowledge of any matter (and with respect to any claim under Section 5.15(b)(1)(x), any third party asserts claim), for which such Buyer Indemnified Party or Seller Indemnified Party is an indemnifiable event pursuant reasonably likely to be entitled to indemnification and to be held harmless under this Section 5.1 or 5.2, the party seeking indemnification 5.15 (the a “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to based on the other party or parties obligated to provide indemnification information available, then the Indemnified Party shall promptly (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim within twenty (20) days) deliver to the Indemnifying Party a written notice describing with reasonable specificity the nature and basis, and estimated amount, of such Claim and, if available, such notice must be accompanied by a copy of any written notice to such Indemnified Party asserting the commencement thereofClaim. The Indemnified Party shall deliver to Indemnifying Party copies of all other notices and documents received by the Indemnified Party relating to the Claim. Subject to Section 5.15(d)(2), the Indemnifying Party shall be entitled to participate therein andhave the right, to the extent that it shall wishat its option, to assume the defense thereof, of any such matter with counsel reasonably satisfactory its own counsel. Prior to such Indemnitee and, after notice from the time the Indemnified Party is notified by Parent and Seller as to whether the Indemnifying Party will assume the defense of such Claim, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the parties with respect to such Indemnitee of such election so Claim, including responding timely to legal process.
(2) The Indemnifying Party shall have the right to elect to assume the defense thereofof any Claim. If the Indemnifying Party elects to assume the defense of any such Claim, then, notwithstanding anything to the contrary contained in this Agreement, the Indemnifying Party shall not be liable required to pay or otherwise indemnify the Indemnitee hereunder Indemnified Party for any legal attorneys’ fees or other expenses incurred on behalf of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, Indemnified Party in connection with defending such matter following the Indemnifying Party’s election to assume the defense thereof of such matter, unless (x) the Indemnified Party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnified Party or other than reasonable costs of investigation; provided, however, Indemnified Parties that if the Indemnitee reasonably believes that counsel for are not available to the Indemnifying Party, or (y) the Indemnified Party cannot represent both reasonably shall have concluded (upon advice of its counsel) that, with respect to such Claim, the Indemnitee Indemnified Party and the Indemnifying Party because may have different, conflicting or adverse legal positions or interests, in which case, the Indemnifying Party shall not be permitted to assume the defense of such representation would be reasonably likely Claim. The Indemnified Party shall make available to result in a conflict of interestthe Indemnifying Party all books, then records and other documents and materials that are under the Indemnitee shall have the right to defend, at the sole cost and expense direct or indirect control of the Indemnified Party or any of its Representatives and that the Indemnifying PartyParty considers necessary or desirable in connection with such Claim, such action by and cooperate in all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with reasonable ways with, and make its employees and advisors available or otherwise render reasonable assistance to, the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying PersonRepresentatives. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Partynot, without the written consent of the IndemniteeIndemnified Party, which shall not be unreasonably withheld, conditioned or delayed, settle or compromise any Claim on terms that provide for (i) a criminal sanction against the Indemnitee pending or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt threatened Legal Proceeding in respect of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as which indemnification may be appropriate under sought hereunder (whether or not the circumstancesIndemnified Party is an actual or potential party to such Legal Proceeding) or consent to contest its indemnification obligation the entry of any judgment which does not, to the extent that the Indemnified Party may have any liability with respect to such claimLegal Proceeding or related Claim), or the amount thereof, by include as an unconditional term thereof a written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount release of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only Indemnified Party from all liability in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of such Legal Proceeding and Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails elects not to assume (or is not permitted to assume in accordance with this paragraph) the defense of any such Claim, then the Indemnified Party shall control the defense of such Claim orwith the assistance of counsel reasonably satisfactory to the Indemnifying Party (it being understood and agreed that only the reasonable, having assumed documented, out of pocket fees and expenses of one counsel to all applicable Indemnified Parties, and if reasonably necessary, one local counsel in any relevant jurisdiction, shall be reimbursed by and deemed Losses for all purposes hereunder); provided, that the defense and settlement of Indemnified Party shall not settle or compromise such Claimmatter, fails reasonably or admit any liability with respect to contest such Claim in good faith, the Indemniteematter, without waiving its right to indemnification, may assume, at the cost prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the defense and settlement contrary in Section 5.15(b)(1)(y), the Parties shall work together in good faith to expeditiously resolve any Claim; provided that this shall not be construed to require any Indemnified Party to pay any monies or agree to any release that does not provide for the release of such Indemnified Party from all liability in respect of any Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Hospitality Properties Trust), Equity Purchase Agreement (Spirit MTA REIT)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant Subject to Section 5.1 or 5.2the following sentence, whenever a claim shall arise for indemnification under this Article 10A, the party seeking indemnification (the “Indemnitee”) Indemnified Party shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve notify the Indemnifying Party of its obligations such claim within the period provided in Section 10.01 and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification under this Article 10A resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten (10) Business Days prior to the time any response to the asserted claim is required, if possible, and in any event within five (5) Business Days following receipt of notice thereof. Notwithstanding the foregoing, in the case of claims for indemnification hereunder but not arising in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall not submit such claims to the Indemnifying Party in increments aggregating less than $50,000. The Indemnified Party’s failure to give timely notice or to furnish the Indemnifying Party with any relevant facts in connection with any third party claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case shall result in any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim prejudice to the Indemnifying Party and provided further that nothing contained herein shall extend the time limits set forth in Section 10.10 hereof. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof by written notice within ten (10) Business Days, using counsel that is reasonably satisfactory to the Indemnified Party, provided that any such exercise of the commencement thereofIndemnifying Party’s rights to take control of the defense and investigation of any third party claim shall not be deemed a waiver of the Indemnifying Party’s right to determine at a later date that such third party claim is not entitled to indemnification under this Agreement, in which case the Indemnifying Party may, in the exercise of its sole discretion, determine not to continue to defend any such third party claim and any action taken by the Indemnifying Party in connection with such determination shall be undertaken in a manner so as not to materially prejudice the defense or the rights of the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party so as to minimize risk of any such prejudice. Each Indemnified Party shall use commercially reasonable efforts to mitigate Environmental Damages for which it seeks indemnification under this Article 10A. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, take all steps necessary in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs including the settlement of investigationany case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the Indemnitee reasonably believes defense of any claim or Legal Proceeding by a third party as provided herein, shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such third party of the Indemnified Party), or consent to the entry of any judgment that counsel for does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article 10A, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information, provided, that in each case, such access shall be given at reasonable times and upon reasonable notice and without undue interruption to such party’s business or personnel. So long as the Indemnifying Party canis in good faith defending such claim or proceeding, the Indemnified Party shall not represent both compromise or settle such claim without the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingswhich consent shall not be unreasonably withheld, conditioned or delayed. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in does not assume the defense of any such claim or litigation, shall, except litigation in accordance with the written consent of each Indemniteeterms hereof, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to Indemnified Party may defend against such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Personsin such manner as it may deem appropriate, including any Governmental settling such claim or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the litigation (after giving prior written consent notice of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted same to the Indemnifying Party and obtaining the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further prior written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost consent of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee which consent shall not settle be unreasonably withheld, conditioned or delayed) on such Claim without soliciting terms as the views of the Indemnifying Indemnified Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentmay reasonably deem appropriate, and the Indemnifying Party shall pay to will promptly indemnify the Indemnitee, immediately upon demand, interest at Indemnified Party in accordance with the rate provisions of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteethis Section 10A.03.
Appears in 2 contracts
Sources: Asset Purchase Agreement (NewPage Holding CORP), Asset Purchase Agreement (NewPage CORP)
Procedures for Indemnification. (a) If there occurs an event that either The procedures for indemnification shall be as follows:
A. The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, claiming the party seeking indemnification (the “Indemnitee”"Claimant") shall promptly provide give notice to the party from whom indemnification is claimed (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”)") of any claim, whether between the parties or brought by a third party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. Providing If the Notice of Claim claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
B. Following receipt of notice from the Claimant of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim, the Indemnifying Party shall be entitled have thirty (30) days to participate therein and, to make such investigation of the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such Indemnitee of such election so to assume the defense thereofnotice, the Indemnifying Party shall not be liable immediately pay to the Indemnitee hereunder for Claimant the full amount of the claim. Buyer shall be entitled to apply any legal expenses or all of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with Accounts Receivable collected on behalf of Seller to a claim as to which Buyer is entitled to indemnification hereunder. If the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee Claimant and the Indemnifying Party because such representation would be reasonably likely do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy.
C. With respect to result in any claim by a conflict of interestthird party as to which the Claimant is entitled to indemnification hereunder, then the Indemnitee Indemnifying Party shall have the right at its own expense, to defendparticipate in or assume control of the defense of such claim, at and the sole cost and expense of Claimant shall cooperate fully with the Indemnifying Party, such action subject to reimbursement for reasonable actual out-of-pocket expenses incurred by all appropriate proceedingsthe Claimant as the result of a request by the Indemnifying Party. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in elects to assume control of the defense against of any such asserted liability. In any eventthird-party claim, the Indemnitee Claimant shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. Promptly after receipt by an Indemnitee of written notice of the assertion or the commencement of any Action by a third party (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the a “Indemnitee”) shall promptly provide notice (the “Notice of Third-Party Claim”) with respect to any matter referred to in Section 9.2 or Section 9.3, the applicable Indemnitee shall give written notice thereof to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing , which notice shall include a description of the Notice Action, the amount thereof (if known and quantifiable) and the basis for the Action, and thereafter shall keep the applicable Indemnifying Party reasonably informed with respect thereto; provided, that failure of Claim shall be a condition precedent the applicable Indemnitee to any Liability of give the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will shall not relieve the Indemnifying Party of its obligations hereunder but only if and except to the extent that such failure materially prejudices the Indemnifying Party hereunderis materially prejudiced thereby. In case any such action Thereafter, the applicable Indemnitee shall be brought against any Indemnitee and it shall provide a Notice of Claim deliver to the Indemnifying Party of Party, promptly following the commencement Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee to the extent relating to the Third-Party Claim and reasonably necessary to the Indemnifying Party’s analysis thereof. A claim for indemnification by an Indemnitee for any matter not involving a Third-Party Claim may be asserted by notice to the Indemnifying Party. The Indemnifying Party shall have the right to control the defense and handling, and settle or compromise, of any Third-Party Claim at its sole expense; provided, that the Indemnitee shall be entitled to participate therein andin the defense of such Action giving rise to its claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to the extent that it limitations set forth below) by appointing a counsel reasonably acceptable to the applicable Indemnitee to be the lead counsel in connection with such defense; provided, that:
(a) the Indemnitee shall wish, be entitled to assume participate in the defense thereofof such claim and to employ counsel of its choice for such purpose; provided, with that the fees and expenses of such separate counsel reasonably satisfactory shall be borne by the Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to such Indemnitee and, after notice from the date the Indemnifying Party to such Indemnitee effectively assumes control of such election so to assume defense which, notwithstanding the defense thereofforegoing, shall be borne by the Indemnifying Party, and except that the Indemnifying Party shall pay all of the fees and expenses of such separate counsel if a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnitee);
(b) the Indemnifying Party shall not be liable entitled to the Indemnitee hereunder for any legal expenses assume control of other counsel or any other expenses, such defense (unless otherwise agreed to in each case subsequently incurred writing by the Indemnitee, ) and shall pay the fees and expenses of counsel retained by the Indemnitee if (i) the claim for indemnification relates to or arises in connection with the defense thereof other than reasonable costs of any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; provided, however, that if (ii) the Indemnitee reasonably believes that counsel an adverse determination with respect to the Action giving rise to such claim for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation indemnification would be reasonably likely detrimental to result in or injure the Indemnitee’s reputation or future business prospects of the Indemnitee; (iii) the claim seeks an injunction or equitable relief against the Indemnitee; (iv) a reasonable likelihood exists of a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with interest between the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for ; (iv) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by upon written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by from the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes failed or is due failing to vigorously prosecute or defend such claim with reasonable detail of the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no ’s good faith justifications for such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.determination; and
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) if the Indemnifying Party shall be permitted to join in control the defense and settlement of any such Claim and to employ counsel at its own expenseclaim, (ii) the Indemnifying Party shall cooperate with obtain the prior written consent of the Indemnitee in the defense and before entering into any settlement of a claim or ceasing to defend such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationclaim.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.), Asset Purchase Agreement (Complete Solaria, Inc.)
Procedures for Indemnification. (a) If there occurs any Purchaser Indemnified Party or any Seller Indemnified Party (hereinafter an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice claim to have suffered a Loss (the other than with respect to any claim asserted, demand or other Action by any Person who is not a party to this Agreement (hereinafter a “Notice of Third-Party Claim”)) for which indemnification is available under Section 7.02 or 7.03, as the case may be (for purposes of this Section 7.04, regardless of whether such Indemnified Party is entitled to receive a payment in respect of such claim by virtue of the other provisions of Section 7.05), the Indemnified Party shall notify the party or parties obligated required to provide indemnification (the hereinafter an “Indemnifying Party”) in writing of such claim within the applicable time periods provided in Section 7.01, which written notice shall describe the nature of such claim, the facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the time such claim is made (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party). Providing In the Notice of Claim shall be a condition precedent to any Liability of event that within thirty (30) days after the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve receipt by the Indemnifying Party of its obligations hereunder but only if and to such a written notice from the extent that such failure materially prejudices Indemnified Party, the Indemnified Party shall not have received from the Indemnifying Party hereunder. In case any a written objection to such action claim, such claim shall be brought against any Indemnitee conclusively presumed and it shall provide a Notice of Claim considered to have been assented to and approved by the Indemnifying Party following receipt by the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after a written notice from the Indemnifying Indemnified Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteeeffect.
(b) Upon receipt of a Notice of ClaimIf within the thirty (30) day period described in Section 7.04(a) above, the Indemnified Party shall have received from the Indemnifying Party a written notice setting forth the Indemnifying Party’s objections to such claim and the Indemnifying Party’s reasons for such objection, then the parties shall have 20 calendar days negotiate in good faith for a period of ten (10) Business Days from the date the Indemnified Party receives such objection. After such ten (10) Business Day period (or such shorter longer period as they may be appropriate under agree in writing), if the circumstances) to contest its indemnification obligation parties still cannot agree on the claim, the Indemnified Party may, at any time thereafter, until the expiration of the applicable statue of limitations with respect to such claimits claim for indemnification, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of legal proceedings against the Indemnifying Party to the claim, enforce its rights to indemnification from and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and against any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth Losses described in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partywritten notice described in Section 7.04(a) above.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Procedures for Indemnification. (a) If there occurs an event that either The following procedures shall be applicable with respect to indemnification for third-party asserts is an indemnifiable event pursuant claims. On the earlier to Section 5.1 or 5.2, occur of receipt of by the party Party seeking indemnification hereunder (hereinafter referred to as the “Indemnitee”) shall promptly provide of notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofof any action and the assertion of any claim, liability or obligation by a third party (whether by legal process or otherwise), against which claim, liability or obligation the other Party to this Purchase Agreement (hereinafter the “Indemnitor”) is, or may be, required under this Purchase Agreement to indemnify such Indemnitee, the Indemnifying Party Indemnitee shall, if a claim thereon is to be, or may be, made against the Indemnitor, notify the Indemnitor in writing of the commencement or assertion thereof and give the Indemnitor a copy of such claim, notice, information, process and all legal pleadings. The Indemnitor shall be entitled have the right to (i) participate therein and, to in the extent that it shall wish, to defense of such action with counsel of reputable standing and (ii) assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so action by agreeing to assume such defense within ten (10) days of transmittal of the defense thereof, notice of the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred claim by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because writing unless such representation would be reasonably likely to claim (A) may result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim criminal proceedings or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only injunctions in respect of the amount Indemnitee or its business; (B) may result in liabilities which would not be fully indemnified hereunder; (C) may have a material adverse effect on the business or financial condition of the LossIndemnitee after the Closing Date (including an effect on the tax liabilities, shall earnings or ongoing business relationships of the Indemnitee); or (D) is not commence until a further written notice (the “Notice of Liability”) has been sent being vigorously prosecuted or delivered defended by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred Indemnitor, as determined by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claiman appropriate court ruling, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails petitions to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationdefense.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Awaysis Capital, Inc.)
Procedures for Indemnification. (a) If there occurs an event 9.3.1. The party that either party asserts is an indemnifiable event pursuant may be entitled to Section 5.1 or 5.2, the party seeking indemnification indemnity hereunder (the “IndemniteeIndemnified Party”) shall promptly provide give prompt notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification give indemnity hereunder (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability ) of the Indemnifying assertion of any claim, its receipt of a notice threatening a claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party hereunder, and to give notice within thirty (30) days of the failure to provide prompt notice as provided herein will assertion of such claim shall relieve the Indemnifying Party of its obligations hereunder but under this Section 9 only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to has been prejudiced by the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee lack of such election so to assume the defense thereof, notice (except that the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the IndemniteeIndemnified Party during the period between (a) thirty (30) days after the assertion of the claim and (b) the date notice was provided to the Indemnifying Party). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in connection with any event within ten (10) days thereof) after the defense thereof other than reasonable costs Indemnified Party’s receipt thereof, copies of investigation; providedall notices and documents (including court papers) received by the Indemnified Party relating to such claim, howeveraction, that if suit or proceeding.
9.3.2. The Indemnifying Party shall have thirty (30) days from the Indemnitee reasonably believes that counsel for receipt of the Notice of Claim (the “Notice Period”) to notify the Indemnified Party (i) whether or not the Indemnifying Party cannot represent both disputes the Indemnitee Indemnifying Party’s liability to the Indemnified Party hereunder with respect to such claim or demand and (ii) if the Indemnifying Party because does not dispute such representation would be reasonably likely to result in a conflict of interestliability, then whether or not the Indemnitee shall have the right to defendIndemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend against such action by all claim or demand, provided that, the Indemnified Party is hereby authorized (but not obligated) prior to and during the Notice Period to file any motion, answer or other pleading which the Indemnified Party shall deem necessary or appropriate proceedingsto protect the Indemnified Party’s interests. The Indemnitee agrees to reasonably cooperate with In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party does not dispute the Indemnifying Party’s obligation to indemnify hereunder and its counsel in desires to defend the defense Indemnified Party against any such asserted liability. In any eventclaim or demand and except as hereinafter provided, the Indemnitee Indemnifying Party shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Partydefend by appropriate proceedings, in the defense of any such claim which proceedings shall be promptly settled or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages prosecuted by the Indemnifying PersonParty to a final conclusion. The Indemnifying If the Indemnified Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and desires to participate in, conferences with all Personsbut not control, including any Governmental such defense or Regulatory Authoritysettlement the Indemnified Party may do so at the Indemnified Party’s sole cost and expense. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, asserting by giving the Indemnified Party timely notice as provided above, then the Indemnified Party, without waiving any Claim rights against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, may settle or defend against any such claim in the Indemnified Party’s sole discretion and, if it is ultimately determined that the Indemnifying Party is responsible therefor under this Section 9 then the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any settlement or judgment and all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including interest as provided in this Section 9. If the Indemnifying Party does not give the
9.3.3. If the Indemnifying Party has provided the Indemnified Party notice during the Notice Period that the Indemnifying Party disputes the Indemnifying Party’s liability to the Indemnified Party with respect to the claim or demand involving a third-party suit, action, proceeding or investigation, the Indemnifying Party shall not be required to indemnify the Indemnified Party with respect to any amounts paid in settlement of any third-party suit, action, proceeding or investigation entered into without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”)Party; provided, however, that if, at the time a Notice of Claim is submitted to if the Indemnifying Party gives ten (10) days’ prior written notice to the amount Indemnified Party of a settlement offer which the Indemnifying Party desires to accept and to pay all Losses with respect thereto (“Settlement Notice”) and the Indemnified Party fails or refuses to consent to such settlement within ten (10) days after delivery of the Loss Settlement Notice to the Indemnified Party, and such settlement otherwise complies with the provisions of this Section 9.3, the Indemnifying Party shall not be liable for Losses arising from such third-party suit, action, proceeding or investigation in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect excess of the amount of such settlement. Notwithstanding the Lossforegoing, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth shall not settle any Claim without the consent of the Indemnified Party if: (i) the amount of any such settlement exceeds the Loss incurred by Seller Basket, or (ii) the Indemnitee that was settlement will have a material adverse effect on the subject TRS Business, operations, assets, properties, prospects or condition (financial or otherwise) of the earlier Notice Indemnified Party.
9.3.4. The Parties shall cooperate in defending any such third-party suit, action, proceeding or investigation, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of Claimthe Indemnified Party that are pertinent to the defense. Such Contest Notice shall specify the reasons or bases for the objection of The Indemnified Party may join the Indemnifying Party in any suit, action, claim or proceeding brought by a third party, as to the claim, and if the objection relates to the amount which any right of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, indemnity created by this Agreement would or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assumemight apply, at the sole cost and expense of the Indemnifying Party, for the defense and settlement purpose of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in enforcing any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views right of the Indemnifying indemnity granted to such Indemnified Party and giving them due considerationpursuant to this Agreement.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either a claim for Damages (“Indemnity Claim”), other than Third-Party Claims under Section 8.5(b) below, is to be made by a Person entitled to indemnification under this Article 8 (“Indemnified Party”), such party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2shall give written notice briefly describing the claim and the total monetary damages sought (each, the party seeking indemnification (the a “Indemnitee”) shall promptly provide notice (the “Notice of ClaimNotice”) to the other party Sellers’ Representative or parties obligated to provide indemnification Buyer, as applicable (the each an “Indemnifying Party”)) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which gives rise to Damages for which indemnification may be sought under this Article 8. Providing the Notice Any failure to submit any such notice of Claim shall be a condition precedent claim to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will shall not relieve the any Indemnifying Party of its obligations hereunder but only if and any liability hereunder, except to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to demonstrates that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be deemed to have accepted the Notice and the Indemnifying Party shall be deemed to have agreed to pay the Damages at issue if the Indemnifying Party does not send a notice of disagreement to the commencement thereofIndemnified Party within thirty (30) calendar days after receiving the Notice. If the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice, the Indemnifying Party shall promptly pay to the Indemnified Party the amount sufficient to pay the Damages. For the avoidance of doubt, Buyer shall only be required to send notices to and obtain the approval of the Sellers’ Representative with respect to this Section 8.5; however, Buyer shall serve courtesy notices to Plains Pacific pursuant to Section 9.18 of this Agreement.
(b) If an Indemnity Claim is to be made by an Indemnified Party entitled to participate therein andindemnification hereunder in respect of, arising out of or involving a claim made by any third party (each, a “Third-Party Claim”) against the Indemnified Party, the Indemnified Party shall give a Notice to the Indemnifying Party as soon as practicable after becoming aware of such Third-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. After such Notice, if the Indemnifying Party acknowledges in writing to an Indemnified Party that the Indemnifying Party is liable and has indemnity obligations for any Damages resulting from any such Indemnitee of such election so to assume the defense thereofThird-Party Claim, then the Indemnifying Party shall not be liable entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Third-Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnitee hereunder for Indemnified Party) to handle and defend the same, unless the named parties to such action or proceeding include the Indemnified Party and the Indemnifying Party, and any such Indemnified Party has been advised in writing by counsel that there may be one or more legal expenses of other counsel defenses available to such Indemnified Party that are different from or any other expensesadditional to those available to the Indemnifying Party, in each case subsequently incurred by which event such Indemnified Party shall be entitled, at the IndemniteeIndemnifying Parties’ cost, in connection risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld, provided that any such compromise or settlement shall provide for the absolute and unconditional release of the Indemnified Parties from any Liability with respect to such Third-Party Claim. If the Indemnifying Party assumes the defense thereof other than of a Third-Party Claim (to the extent permitted above), the Indemnified Party shall cooperate in all reasonable costs respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of investigationsuch Third-Party Claim and any appeal arising therefrom; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Indemnified Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interestmay, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense cost, participate in the investigation, trial and defense of such asserted liability. No Indemnifying Party, in the defense of lawsuit or action and any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Personappeal arising therefrom. The Indemnifying Party agrees Parties shall cooperate with each other in any notifications to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Personsinsurers. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim orclaim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense), having assumed the defense Indemnified Party against which such claim has been asserted will have the right to undertake, at the Indemnifying Parties’ cost, risk and expense, the defense, compromise or settlement of such Claim, fails reasonably to contest such Third-Party Claim in good faith, on behalf of and for the Indemnitee, without waiving its right to indemnification, may assume, at the cost account and risk of the Indemnifying Party, the defense and settlement of such ClaimParties; provided, however, that (i) such claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement; provided, however, that the Indemnifying Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The Indemnifying Party shall be permitted to join in the defense and liable for any settlement of such any Third-Party Claim effected pursuant to and in accordance with this Section 8.5 and for any final judgment (subject to employ counsel at its own expenseany right of appeal), (ii) the and each Indemnifying Party shall cooperate with agrees to indemnify and hold harmless the Indemnitee in the defense Indemnified Party from and settlement against any Damages by reason of such Claim settlement or judgment subject to the limitations provided in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee8.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event Whenever a claim shall arise for indemnification under Section 9.02 (a “Claim”) that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2does not involve a third party, the party seeking Person entitled to indemnification (“Indemnified Party”) shall give written notice (the “IndemniteeClaim Notice”) to the Party from which indemnification is sought (“Indemnifying Party”) of such Claim within a reasonable time after such Indemnified Party becomes aware of any fact, condition or event giving rise to Losses for which indemnification may be sought under Section 9.02, which Claim Notice shall specify in reasonable detail, to the extent reasonably known and practicable at such time, the amount of the Claim and each individual item of Loss included in the amount so stated and the basis for indemnification. The failure of any Indemnified Party to give timely notice hereunder shall not affect such Indemnified Party’s rights to indemnification hereunder, except to the extent the Indemnifying Party is actually prejudiced by such delay or failure, in which case the amount of reimbursement to which the Indemnified Party is entitled shall be reduced by the amount, if any, by which the Indemnified Party’s Losses would have been less had such Claim Notice been timely given. If the applicable Indemnifying Party notifies the Indemnified Party that they do not dispute the claim described in such Claim Notice, the Losses identified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under Section 9.02(a) or Section 9.02(b), as applicable. If the Indemnifying Party disputes its liability with respect to such Claim or the estimated amount of such Losses pursuant to this Section 9.04 within thirty (30) days following receipt of such Claim Notice or fails to respond within such thirty (30) day period, the Parties shall attempt in good faith to resolve such dispute; provided, that if such dispute has not been resolved within sixty (60) days following receipt of such Claim Notice, then the Indemnifying Party and the Indemnified Party may seek legal redress in accordance with ARTICLE X.
(b) If any Indemnified Party receives notice of the assertion of any claim or the commencement of any Action by a third party (each a “Third Party Claim”) with respect to a matter subject to indemnity hereunder, notice thereof (a “Third Party Notice”) shall promptly provide notice (the “Notice of Claim”) be given to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing , which Third Party Notice shall specify in reasonable detail, to the Notice of Claim shall be a condition precedent to any Liability extent reasonably known and practicable at such time, the amount of the Third Party Claim and each individual item of Loss included in the amount so stated and the basis for indemnification, and will include copies of all notices and documents (including court papers) served on or received by the Indemnified Party. The failure of any Indemnified Party to give timely notice hereunder shall not affect such Indemnified Party’s rights to indemnification hereunder, except to the extent such delay or failure actually prejudices the Indemnifying Party’s ability to defend such Third Party hereunderClaim, and the failure amount of reimbursement to provide prompt notice as provided herein will relieve which the Indemnifying Indemnified Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action is entitled shall be brought against any Indemnitee and it shall provide reduced by the amount, if any, by which the Indemnified Party’s Losses would have been less had such Third Party Notice been timely delivered. After receipt of a Notice of Claim to the Indemnifying Third Party of the commencement thereofNotice, the Indemnifying Party shall be entitled have the right, but not the obligation, by providing written notice to participate therein andthe Indemnified Party, subject to Section 9.04(d), to the extent that it shall wish, to assume (i) take control of the defense thereofand investigation of such Third Party Claim at the Indemnifying Party’s sole costs and expense, (ii) employ and engage attorneys of its own choice (subject to the approval of the Indemnified Party, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Party’s sole cost and expense, and (iii) compromise or settle such claim, which compromise or settlement shall be made only with counsel reasonably satisfactory to the written consent of the Indemnified Party; provided, that such Indemnitee and, after notice from consent will not be required if such settlement includes an unconditional release of the Indemnified Party and provides solely for payment of monetary damages for which the Indemnified Party will be indemnified in full under this Agreement.
(c) In the event that the Indemnifying Party desires to such Indemnitee of such election so to assume defend the defense thereofIndemnified Party against a Third Party Claim, (i) the Indemnifying Party shall not be liable use its reasonable best efforts to defend diligently such Third Party Claim, and (ii) the Indemnified Party, prior to the Indemnitee hereunder for period in which the Indemnifying Party assumes the defense of such matter, may take such reasonable actions to preserve any legal expenses and all rights with respect to such matter, without such actions being construed as a waiver of other counsel the Indemnified Party’s rights to defense and indemnification pursuant to this Agreement, but with such actions not being determinative of the amount of any Losses. The Indemnified Party shall cooperate in all reasonable respects, at the Indemnifying Party’s request, with the Indemnifying Party and its attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any other expensescross complaint against any Person, in each case subsequently incurred by case, at the Indemniteeexpense of the Indemnifying Party. The Indemnified Party may, at its own sole cost and expense, monitor and further participate in connection with (but not control) the investigation, trial and defense thereof other than reasonable costs of investigationsuch Third Party Claim and any appeal arising therefrom; provided, however, that if (i) the Indemnitee reasonably believes that employment of counsel for shall have been authorized in writing by the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate connection with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim action or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee not have employed, or are prohibited under this Section 9.04 from employing, counsel in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and action or claim, or (iii) such Indemnified Party shall have reasonably concluded that a conflict or potential conflict exists between the Indemnitee shall not settle such Claim without soliciting the views of Indemnified Party and the Indemnifying Party or there may be defenses available to the Indemnified Party that are contrary to, or inconsistent with, those available to the Indemnifying Party, then, in any such event, the fees and giving them due considerationexpenses of not more than one additional counsel for the Indemnified Party shall be borne by the Indemnifying Party.
(d) The Notwithstanding the foregoing, if (i) the Indemnifying Party shall make elects not to assume such defense and investigation or do not acknowledge in writing within a reasonable period, but no later than ten (10) days, after receipt of the Third Party Notice their obligation to indemnify the Indemnified Party against any payment required Losses arising from such Third Party Claim, (ii) the Indemnifying Party fails to be made actively and diligently, with legal counsel reasonably acceptable to the Indemnified Party, conduct the defense of the action, (iii) such Third Party Claim seeks an injunction or other equitable remedies in respect of the Indemnified Party or its business or involves any Governmental Entity, (iv) such Third Party Claim is reasonably likely to result in liabilities that, taken with other then-existing claims under this Article in cash ARTICLE IX, would not be fully indemnified hereunder, (v) the Indemnified Party has been advised by counsel that an actual or potential conflict exists between the Indemnified Party and on demand. Any payments required to be paid by an the Indemnifying Party under this Article that are not paid within five business days in connection with the defense of the date on which Third Party Claim, or (vi) such Third Party Claim seeks a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, then the Indemnified Party shall have the right, but not the obligation becomes final (upon delivering notice to such effect to the Indemnifying Party) to retain separate counsel of its choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Party); it being understood that the Indemnified Party’s right to indemnification for a Third Party Claim shall thereafter not be deemed delinquent, adversely affected by assuming the defense of such Third Party Claim.
(e) The Indemnified Party and the Indemnifying Party shall pay use commercially reasonable efforts to the Indemniteeavoid production of confidential information (consistent with Law), immediately upon demandand to cause all communications among employees, interest at the rate of 10% per annum, not counsel and others representing any party to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered a Third Party Claim to be Losses of the Indemniteemade so as to preserve any applicable attorney-client or work-product privileges.
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Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Whenever a Claim shall arise for indemnification under Section 5.1 or 5.29.02, the party seeking Person entitled to indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice (notify in writing the “Notice of Claim”) to the other party or parties obligated to provide Party from which indemnification is sought (the “Indemnifying Party”). Providing ) of such Claim and, when known, the Notice facts constituting the basis of such Claim; provided, however, that in the event of a Claim for indemnification resulting from or in connection with a Claim by a third party, the Indemnified Party shall be a condition precedent give such written notice thereof to any Liability of the Indemnifying Party hereundernot later than ten (10) Business Days prior to the time any response to the third party Claim is legally required, if possible, and the in any event within twenty (20) Business Days following receipt of notice thereof (provided, that failure to provide prompt notice as provided herein will timely notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only if and any Liability it may have to the Indemnified Party, except to the extent that such failure materially prejudices the Indemnifying Party hereunderhas been actually prejudiced by such failure). In case Following receipt of notice of any such action shall be brought against any Indemnitee third party Claim, and it shall provide a Notice of Claim unless counsel to the Indemnifying Party shall have reasonably determined in good faith that the assumption of such defense by the Indemnifying Party would be inappropriate due to a conflict of interest (in which case the Indemnified Party may continue to defend such Claim at the expense of the commencement thereofIndemnifying Party), the Indemnifying Party shall be entitled to participate therein andhave the option, exercisable by written notice to the extent that it shall wishIndemnified Party within ten (10) days following receipt by the Indemnifying Party of notice such third party Claim, at its cost and expense, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so matter and to assume retain counsel (not reasonably objected to by the defense thereofIndemnified Party) to defend any such claim or legal proceeding. Upon such assumption, the Indemnifying Party shall not be liable to the Indemnitee hereunder Indemnified Party for any legal expenses fees of other counsel or any other expenses, in each case subsequently incurred by expenses (except as expressly provided to the Indemnitee, in connection contrary herein) with respect to the defense thereof of such Claim, other than reasonable costs fees and expenses of investigation; provided, however, that if counsel employed by the Indemnitee reasonably believes that counsel Indemnified Party for any period during which the Indemnifying Party canhas not represent both assumed the Indemnitee defense thereof, only to the extent such fees and expenses exceed the Indemnifying Deductible and only to the extent of such excess (or in the event the Deductible has been otherwise satisfied). The Indemnified Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with Indemnified Party unless (a) the Indemnifying Party and fails to notify the Indemnified Party in writing of its counsel election to defend as provided in the defense against any such asserted liability. In any eventthis Section 9.05, the Indemnitee shall have the right (b) fails to participate at its own expense in diligently prosecute the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any third party Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (iic) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, counsel to the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under reasonably determined in good faith that the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, defense by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount would be inappropriate due to a conflict of the Loss in respect thereof has not yet been determinedinterest) with its own counsel and counsel for each Party shall, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying extent consistent with such counsel’s professional responsibilities, cooperate with the other Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemniteecounsel designated by that Party. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party elects not to compromise or defend such third party Claim, fails to assume notify the Indemnified Party in writing of its election to defend as provided in this Section 9.05, or fails to diligently prosecute the defense of such Claim orthird party Claim, having assumed the defense and Indemnified Party may defend such third party Claim. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Claim, fails reasonably to contest such Claim the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the Indemniteeother Party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other Party shall consent, without waiving its right such consent not to indemnificationbe unreasonably withheld, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the conditioned or delayed. An Indemnifying Party shall not be permitted to join liable for any settlement, compromise or judgment not made in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate accordance with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationpreceding sentence.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
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Procedures for Indemnification. (a) If there occurs an event that either party asserts a claim for Damages is an indemnifiable event to be made by any of the NETGEAR Indemnified Parties pursuant to Section 5.1 or 5.2, the party seeking indemnification this Article X (the “IndemniteeIndemnified Party”) shall promptly provide ), the Indemnified Party agrees to give written notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification Designated Principals (the “Indemnifying PartyParties”) promptly and in any event not later than sixty (60) days after the date the Indemnified Party shall first become aware of such claim of the assertion of any fact, condition, event, claim, action or proceeding that may give rise to Damages in respect of which indemnity may be sought under this Article X (a “Claim”). Providing ; provided that the Notice failure to give such prompt notice shall not affect the rights of Claim shall be a condition precedent the Indemnified Party except to any Liability of the extent the Indemnifying Party hereunderis actually prejudiced by such failure. The notice shall state in reasonable detail the information then available regarding the amount and nature of the Claim and shall specify the provision or provisions of this Agreement under which the Claim is asserted. The Indemnifying Party shall be deemed to have accepted the notice of the Claim and to have agreed to pay the Damages at issue if such Indemnifying Party does not send a notice of disagreement to the Indemnified Party within sixty (60) calendar days after receiving notice of the Claim. In the case of a disputed Claim, the parties shall use their reasonable best efforts to resolve the matter internally on an expeditious basis and the failure to provide prompt in any event within forty-five (45) calendar days after notice as provided herein will relieve is received by the Indemnifying Party of its obligations hereunder but only if and Party. If after such forty-five (45) calendar day period has passed, the parties have not mutually resolved the matter, then the Indemnified Parties may initiate legal proceedings with respect to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case Claim.
(b) If any such lawsuit or enforcement action is filed against any Indemnified Party, written notice thereof shall be brought against any Indemnitee and it shall provide a Notice of Claim given to the Indemnifying Party as promptly as practicable (and in any event no later than the earlier of (i) ten (10) calendar days after the service of the commencement thereofcitation or summons and (ii) sixty (60) days after the Indemnified Party shall first become aware of the filing of such suit or action); provided that the failure to give such notice shall not affect the rights of the Indemnified Party except to the extent the Indemnifying Party is actually prejudiced by such failure. After such notice, provided that the Indemnifying Party acknowledges in writing, based on the information then available to the Indemnified Party that the Indemnifying Party shall be entitled to participate therein andobligated under the terms of its indemnity hereunder in connection with such lawsuit or action, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, then the Indemnifying Party shall not be liable entitled, if it so elects, by written notice to the Indemnitee hereunder Indemnified Party given within fifteen (15) calendar days after the date of notice of the claim from the Indemnified Party pursuant to the first sentence of this paragraph (b), at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action (except with respect to any claims for any legal expenses of other counsel or any other expensesequitable relief, in each case subsequently incurred by provided that the Indemnitee, Indemnified Party shall consult with the Indemnifying Party in connection with any such proceeding), (ii) to employ and engage attorneys of its own choice to handle and defend the same, unless the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, in which event the Indemnified Party shall be entitled, at the Indemnifying Party’s cost, risk and expense, to engage separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld (it being agreed that it shall be reasonable to withhold such consent if such compromise or settlement does not include a complete release of the Indemnified Party from all liability with respect thereto, or imposes any liability on the Indemnified Party). The Indemnified Party shall cooperate at the expense of the Indemnifying Party in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense thereof other than reasonable costs of investigationsuch lawsuit or action and any appeal arising therefrom; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Indemnified Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interestmay, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense cost, participate in the investigation, trial and defense of such asserted liability. No Indemnifying Party, in the defense of any such claim lawsuit or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, action and any undisputed amount shall be promptly paid over to the Indemniteeappeal arising therefrom. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim orclaim within fifteen (15) calendar days after the notice of the claim referred to in the first sentence of this paragraph (b), having assumed the defense Indemnified Party against which such claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost, risk and expense, the defense, compromise or settlement of such Claim, fails reasonably to contest such Claim in good faithclaim. If the Indemnified Party assumes the defense of the claim, the Indemnitee, without waiving its right to indemnification, may assume, at Indemnified Party will keep the cost Indemnifying Party reasonably informed of the Indemnifying Partyprogress of any such defense, the defense and settlement of such Claim; provided, however, that (i) the compromise or settlement. The Indemnifying Party shall be permitted liable for indemnifiable Damages arising from the settlement or resolution of any claim pursuant to join and in accordance with this Section 10.3 (subject to the defense and settlement indemnification provisions of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, X (and the Indemnifying Party shall pay to limitations contained herein) and the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the IndemniteeEscrow Agreement).
Appears in 1 contract
Sources: Merger Agreement (Netgear Inc)
Procedures for Indemnification. (a) If there occurs a party entitled to indemnification under this Section 11 (an event “Indemnified Party”) asserts that either it has suffered or incurred a Loss for which it is entitled to indemnification or that a party asserts obligated to indemnify it has become obligated to such Indemnified Party, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnified Party may become entitled to indemnification or a party obligated to indemnify it has become obligated to an indemnifiable event Indemnified Party, such Indemnified Party shall give prompt written notice to (i) in the case of a claim for indemnification pursuant to Section 5.1 or 5.211.2(a), the party seeking applicable Seller against whom such claim is asserted, (ii) in the case of a claim for indemnification pursuant to Section 11.2(b), the Seller Representative, and (iii) in the “Indemnitee”) shall promptly provide notice case of a claim for indemnification pursuant to Section 11.3, the Buyer (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the each such person, an “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent No delay in delivering such written notice to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will shall relieve the Indemnifying Party from any obligation hereunder or prevent the Indemnifying Party from recovering in respect of its obligations hereunder but only if any claim for indemnification pursuant to and in accordance with this Section 11 unless, and then solely to the extent that such failure materially prejudices that, the Indemnifying Party hereunderis actually and materially prejudiced thereby. In case any such action shall Such notice by the Indemnified Party will describe the claim giving rise to an obligation of indemnification in reasonable detail and will indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be brought against any Indemnitee and it shall provide a Notice of Claim sustained by the Indemnified Party. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim. Within thirty (30) days after delivery of a notice pursuant to this Section 11.5 (the “Response Period”), the Indemnifying Party shall deliver to the Indemnified Party a written response to such notice. If, during the Response Period, the Indemnifying Party delivers a written notice disputing the Indemnified Party’s entitlement to indemnification of the commencement Losses described in such notice, the parties shall use their reasonable best efforts to settle such disputed matters within thirty (30) days following the expiration of the Response Period. The parties hereto acknowledge and agree that the Federal Rules of Evidence Rule 408 (and any similar state laws) shall apply to all offers to compromise made by the parties hereto during any such negotiations and any subsequent dispute arising therefrom. If the parties are unable to reach agreement within such thirty (30)-day period, the dispute may be resolved by any legally available means consistent with the provisions of Section 15.2.
(b) This Section 11.5(b) shall apply to any suit, action, investigation, claim or proceeding asserted by a third party against an Indemnified Party (a “Third-Party Claim”). In the event an Indemnified Party has written notice of a Third-Party Claim, such Indemnified Party shall notify the Indemnifying Party in writing (and in reasonable detail regarding) the Third-Party Claim promptly (and in any event, within ten (10) Business Days) after receipt by such Indemnified Party on written notice of the Third-Party Claim; provided, however, that failure to give such notification shall not affect any rights of the Indemnified Party under this Agreement except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure. Thereafter, the Indemnified Party and the Indemnifying Party shall promptly deliver following receipt thereof, a copy of all material written notices and documents (including court papers) received by either of them relating to the Third-Party Claim. If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate therein in the defense thereof and, if it so chooses, upon written notice given to the extent Indemnified Party within twenty (20) days of the receipt of the Indemnifying Party of the notice of such Third-Party Claim (or, if sooner, the date that it shall wishis ten (10) Business Days prior to the time any response to such Third-Party Claim is required), assume and control the defense thereof with counsel selected by the Indemnifying Party and not reasonably objected to by the Indemnified Party. Should the Indemnifying Party so elect to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying of a Third-Party to such Indemnitee of such election so to assume the defense thereofClaim, the Indemnifying Party shall not be liable to the Indemnitee hereunder Indemnified Party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, Indemnified Party in connection with the defense thereof other than reasonable costs thereof, unless (i) the employment of investigation; providedsuch counsel has been specifically authorized in writing by the Indemnifying Party, however, (ii) the Indemnified Party shall have been advised by counsel that if the Indemnitee reasonably believes that counsel for assumption of such defense by the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely inappropriate due to result in a an actual or potential conflict of interest, then or (iii) the Indemnitee Indemnified Party shall have been advised by counsel that one or more defenses are available to the right Indemnified Party that are not available to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party (provided that the Indemnifying Party shall not be liable for the fees and its expenses of more than one firm of counsel in for all Indemnified Parties, other than local counsel). If the defense against any Indemnifying Party assumes such asserted liability. In any eventdefense, the Indemnitee Indemnified Party shall have the right to participate in the defense thereof and to employ at its own expense (except as provided in the defense of such asserted liability. No immediately preceding sentence) counsel not reasonably objected to by the Indemnifying Party, in separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent and shall be empowered to entry of any judgment or enter into make any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in with respect to such claim or litigation or that does not solely require Third-Party Claim, subject to the payment remaining terms of money damages by the Indemnifying Personthis Section 11.5(b). The Indemnifying Party agrees shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any give notice of a Third-Party Claim against the Indemnitee or conferences with representatives of or counsel for such Personsas provided above). In no event connection with any Third-Party Claim, all the parties shall cooperate and shall cause their Affiliates to reasonably cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third-Party Claim, and making employees available on any basis reasonably requested by the Indemnifying Party to provide additional information and explanation of any material provided hereunder or otherwise relating to the Third-Party Claim, provided, however, that (x) the Indemnified Party shall not be required to produce any records or information (1) that may constitute privileged attorney-client communications and the transfer of which, or the provision of access to which, as reasonably determined by the Indemnified Party’s counsel, would reasonably be expected to constitute a waiver of any such privilege or (2) if the provision of access to such document (or applicable portion thereof) or information, as determined by the Indemnified Party’s counsel, would reasonably be expected to conflict with Applicable Laws (provided that the Indemnified Party shall use reasonable best efforts to allow for such access in a manner that does not result in the events set out in the preceding clauses (1) and (2) (including (if applicable) executing a common interest agreement with respect to such information)) and (y) any reasonable out-of-pocket costs or expenses incurred by the Indemnified Party in connection with any such cooperation shall be borne solely by the Indemnifying Party and reimbursed to the Indemnified Party. Whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent of (such consent not to be unreasonably withheld or delayed), unless the IndemniteeIndemnified Party reasonably determines that a failure to admit any liability with respect to, settle any or settle, compromise or discharge, such Third-Party Claim on terms that provide for (i) may result in a criminal sanction Governmental Entity initiating or continuing to pursue an Action against the Indemnitee Indemnified Party or (ii) injunctive relief affecting any of its Affiliates, which if such Action were successful, would reasonably be expected to be materially detrimental to the Indemnitee.
(b) Upon receipt Person against which such Action were to be initiated. If the Indemnifying Party assumes the defense of a Notice of Third-Party Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation not admit any liability with respect to such claimto, or settle, compromise or discharge, such Third-Party Claim without the amount thereof, by prior written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount consent of the Loss in respect thereof has not yet been determinedIndemnified Party, unless such 20 day period in respect ofadmission, but only in respect of the amount of the Losssettlement, shall not commence until a further written notice compromise or discharge (the “Notice of Liability”1) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of obligates the Indemnifying Party to pay the Indemnitee the full amount of the Loss set forth liability in the Notice of connection with such Third-Party Claim, (2) releases the Indemnified Party completely in connection with such Third-Party Claim, (3) does not contain any admission of wrongdoing or subsequent Notice misconduct by the Indemnified Party and (4) does not involve any injunction or other equitable relief or relief for other than money damages against the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of Liability, any Third-Party Claim (and shall be deemed established liable for the reasonable fees and accepted expenses of counsel incurred by the Indemnified Party in defending such Third-Party Claim) if (i) such Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party or its Affiliates, (ii) such Third-Party Claim relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party; (iii) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying PartyParty failed or is failing to vigorously prosecute or defend such Third-Party Claim; or (iv) such Third-Party Claim has been brought by a Governmental Entity.
(c) If To the Indemnifying Party fails to assume the defense extent of such Claim orany conflict between Section 10.2(b) and this Section 11.5, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (iSection 10.2(b) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationgovern.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either Promptly after receipt by Purchaser of written notice of the assertion or the commencement of any Proceeding by a third party asserts is an indemnifiable event pursuant with respect to any matter referred to in Section 5.1 or 5.29.2, the party seeking indemnification (the “Indemnitee”) Purchaser shall promptly provide give written notice (the “Notice of Claim”) thereof to the other party or parties obligated to provide indemnification Stockholders Representative on behalf of the Shareholders (collectively, the “Indemnifying PartyParties”). Providing the Notice of Claim , which notice shall be include a condition precedent to any Liability description of the Indemnifying Party hereunderProceeding, the amount thereof (if known and quantifiable) and the basis for the Proceeding, and thereafter shall keep the Stockholders Representative reasonably informed with respect thereto; provided, that failure of Purchaser to provide prompt give the Stockholders Representative notice as provided herein will shall not relieve the Indemnifying Party Stockholders Representative of its obligations hereunder but only if and except to the extent that such failure materially prejudices the Indemnifying Party hereunderStockholders Representative is prejudiced thereby. In case A claim for indemnification for any such action matter not involving a third party Proceeding may be asserted by notice to the Stockholders Representative and shall be brought against any Indemnitee and it paid promptly after such notice, unless such claim is properly challenged by the Stockholders Representative in accordance with the procedures set forth in the Escrow Agreement, in which case, such claim shall provide a Notice of Claim to be paid, if at all, in accordance with the Indemnifying Party of the commencement thereof, the Indemnifying Party Escrow Agreement. The Stockholders Representative shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No action, lawsuit, proceeding, investigation or other claim giving rise to Purchaser’s claim for indemnification at the Stockholders Representative’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by appointing a nationally recognized and reputable counsel reasonably acceptable to Purchaser to be the lead counsel in connection with such defense; provided that:
(a) Purchaser shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by Purchaser (other than any fees and expenses of such separate counsel that are incurred prior to the date the Stockholders Representative effectively assumes control of such defense which, notwithstanding the foregoing, shall be paid out of the Escrow Amount, and except that the fees and expenses of such separate counsel shall be paid out of Escrow Amount if the Stockholders Representative has been advised by counsel that a conflict of interest exists between among the Indemnifying PartyParties and the Indemnified Parties);
(b) the Stockholders Representative shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by Purchaser) and shall pay the fees and expenses of counsel retained by Purchaser if: (i) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation against the Company or any Stockholder; (ii) Purchaser reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure Purchaser’s reputation or future business prospects; (iii) the claim seeks an injunction or equitable relief against Purchaser; (iv) Purchaser has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Stockholders Representative and Purchaser; (v) the claim involves environmental matters in which case Purchaser shall have sole control and management authority over the resolution of such claim (including hiring legal counsel, negotiating with any Governmental Authority and third parties and defending or settling claims and actions); (vi) upon petition by Purchaser, the appropriate court rules that the Stockholders Representative failed or is failing to vigorously prosecute or defend such claim, or (vii) Purchaser reasonably believes that the Damages relating to the claim could exceed the maximum amount that Purchaser could then be entitled to recover under the applicable provisions of Article IX; and
(c) if the Stockholders Representative shall control the defense of any such claim or litigationclaim, shall, except with the Stockholders Representative shall obtain the prior written consent of each Indemnitee, consent to entry of any judgment or enter Purchaser before entering into any settlement that of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against Purchaser or if such settlement does not include as an unconditional term thereof the expressly and unconditionally release of the Indemnitee Purchaser from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee liabilities and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation obligations with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partywithout prejudice.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Merger Agreement (Shutterfly Inc)
Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise for indemnification under SECTION 11.2 or SECTION 11.3, with the exception of claims for litigation expenses in respect of litigation as to which a notice of claim, as provided in this SECTION 11.4, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2ongoing basis, the party seeking Person entitled to indemnification (the “Indemnitee”"INDEMNIFIED PARTY") shall promptly provide notice notify the party from which indemnification is sought (the “Notice "INDEMNIFYING PARTY") of Claim”) such claim and, when known, the facts constituting the basis for such claim; PROVIDED, HOWEVER, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereundernot later than ten (10) Business Days prior to the time any response to the asserted claim is required, if possible, and the in any event within fifteen (15) Business Days following receipt of notice thereof (PROVIDED that failure to provide prompt notice as provided herein will timely notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only if and any liability it may have to the Indemnified Party, except to the extent that such failure materially prejudices the Indemnifying Party hereunderhas been actually prejudiced by such failure). In case any such action shall be brought against any Indemnitee and it shall provide Following receipt of notice of a Notice of Claim to the Indemnifying Party of the commencement thereofclaim or Legal Proceeding by a third party, the Indemnifying Party party reasonably expected to bear fifty percent (50%) or more of any Losses in connection with such claim or Legal Proceeding shall be entitled to participate therein and, to have the extent that it shall wish, right to assume the defense thereof, with counsel reasonably satisfactory of any such claim or Legal Proceedings and to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee control any Environmental Remedial Action that may be required as a result of such election so claim or Legal Proceeding, at its cost and expense, and shall have the right to assume retain counsel (not reasonably objected to by the defense thereofother party) to defend any such claim or Legal Proceeding, and the Indemnifying Party controlling party shall not be liable to the Indemnitee hereunder other party for any legal expenses fees of other counsel or any other expenses, in each case subsequently incurred by expenses (except as expressly provided to the Indemnitee, in connection contrary herein) with respect to the defense thereof of such claim or Legal Proceeding, other than reasonable costs fees and expenses of investigation; provided, however, that if counsel employed by the Indemnitee reasonably believes that counsel other party for any period during which the Indemnifying Party cancontrolling party has not represent both assumed the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee defense thereof. The other party shall have the right to defend, option of joining the defense of such claim or Legal Proceeding (which shall be at the sole cost and expense of such other party) with counsel not reasonably objected to by the Indemnifying Partycontrolling party and counsel for each party shall, to the extent consistent with such action by all appropriate proceedings. The Indemnitee agrees to reasonably counsel's professional responsibilities, cooperate with the Indemnifying Party other party and its any counsel in the defense against any such asserted liabilitydesignated by that party. In effecting the settlement or compromise of, or consenting to the entry of any eventjudgment with respect to, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigationLegal Proceeding, shallthe parties shall act in good faith, except shall consult with the written consent of each Indemnitee, other and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such consent not to be unreasonably withheld, conditioned or enter into delayed (provided, that Purchaser may withhold consent to any compromise or settlement that does not include as an unconditional term thereof would unreasonably interfere with the release operation of the Indemnitee from all Liability Business). An Indemnifying Party or an Indemnified Party, as the case may be, shall not be liable for any settlement, compromise or judgment or other Losses not made in respect accordance with the preceding sentence. In connection with any Environmental Remedial Action, the controlling party shall consult with the other party on a regular basis and shall consider in good faith and make reasonable efforts to address any recommendations of the other party relating to such claim Environmental Remedial Action. Unless an emergency action is required to address conditions that present an imminent and substantial endangerment or litigation in other exigent circumstances, an Indemnifying Party shall not be liable for Losses associated with any Environmental Remedial Action undertaken by the other party without the Indemnifying Party's consent, such consent not to be unreasonably withheld, conditioned or delayed (provided, that does not solely require Purchaser may withhold consent to any compromise or settlement that would unreasonably interfere with the payment operation of money damages the Business). Notwithstanding the foregoing, the parties agree that any proceedings or claims, to the extent relating to Criminal Violations, may be controlled exclusively by the Indemnifying Person. The Indemnifying Party agrees alleged to afford have engaged in the Indemnitee and its counsel applicable criminal violations (provided, that Purchaser shall not be required to effect or participate in any compromise or settlement that would unreasonably interfere with the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent operation of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeBusiness).
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by an Indemnitee by delivery of a condition precedent written notice to any Liability of Indemnitor requesting indemnification and specifying the Indemnifying Party hereunder, basis on which indemnification is sought and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party amount of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein asserted Losses and, to in the extent that it shall wishcase of a Third Party Claim, to assume the defense thereof, with counsel reasonably satisfactory to containing (by attachment or otherwise) such Indemnitee and, after notice from the Indemnifying Party to other information as such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have concerning such Third Party Claim. An Indemnification Claim may be amended from time to time until the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense final determination of such asserted liability. No Indemnifying Party, Indemnification Claim under the procedures set forth in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteethis Article 15.
(b) Upon receipt of If the Indemnification Claim involves a Notice of Claim, Third Party Claim the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss procedures set forth in the Notice of Claim, or subsequent Notice of Liability, Section 15.5 hereof shall be deemed established observed by Indemnitee and accepted by the Indemnifying PartyIndemnitor.
(c) If the Indemnifying Indemnification Claim involves a matter other than a Third Party fails Claim, Indemnitor shall have thirty (30) days to assume the defense object to such Indemnification Claim by delivery of a written notice of such Claim or, having assumed objection to such Indemnitee specifying in reasonable detail the defense basis for such objection. Failure to timely so object shall constitute a final and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost binding acceptance of the Indemnifying PartyIndemnification Claim by Indemnitor, and the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party Indemnification Claim shall be permitted to join paid in accordance with subsection (d) hereof. If an objection is timely interposed by Indemnitor and the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested dispute is not resolved by the Indemnitee and Indemnitor within fifteen (iii15) days from the date Indemnitee receives such objection, such dispute shall not settle such Claim without soliciting the views be resolved by arbitration as provided in Section 16.13 of the Indemnifying Party and giving them due considerationthis Agreement.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash Upon determination of the amount of an Indemnification Claim, whether by agreement between Indemnitor and on demand. Any payments required to be paid Indemnitee or by an Indemnifying Party under this Article that are not paid arbitration award or by any other final adjudication, Indemnitor shall pay the amount of such Indemnification Claim within five business ten (10) days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of amount is determined. If payment of such delinquent sums, which interest shall be considered to be Losses the amount of the IndemniteeIndemnification Claim is not received by the Purchaser within such ten (10) days, the Purchaser may exercise its rights of setoff under the Note.
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Procedures for Indemnification. (a) If there occurs a party entitled to indemnification under this Section 8 (an event "Indemnitee") asserts that either a party asserts is obligated to indemnify it under this Section 8 (an indemnifiable event "Indemnitor") has become obligated to such Indemnitee pursuant to Section 5.1 8.2 or 5.28.3, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the party seeking indemnification (the “Indemnitee”) Indemnitor may become obligated to an Indemnitee hereunder, such Indemnitee shall promptly provide give prompt written notice (the “Notice of Claim”) thereof to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationIndemnitor; provided, however, that if the failure of the Indemnitee reasonably believes that counsel for to give prompt notice to the Indemnifying Party canIndemnitor shall not represent both release the Indemnitor of its indemnification obligations hereunder, except to the extent the Indemnitor shall have been prejudiced by such lack of timely and adequate notice. The Indemnitor shall have the right, but not the obligation, to defend, contest or otherwise protect the Indemnitee against any such suit, action, investigation, claim or proceeding at its sole cost and expense. If the Indemnifying Party because such representation would be Indemnitor so elects to defend, contest or otherwise protect the Indemnitee, the Indemnitee shall (i) make available to the Indemnitor all relevant books and records in its possession and (ii) cooperate and assist the Indemnitor to the extent reasonably likely to result in a conflict of interest, then the possible. The Indemnitee shall have the right to defendright, at but not the sole cost and expense of the Indemnifying Partyobligation, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense thereof by counsel of the Indemnitee's choice. If the Indemnitor fails to defend, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the Indemnitee shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and the Indemnitee shall be entitled to recover the entire cost thereof from the Indemnitor, including, without limitation, reasonable attorneys' fees, disbursements and amounts paid as the result of such asserted liability. No Indemnifying Partysuit, in action, investigation, claim or proceeding; provided that the defense of Indemnitee shall not compromise or settle any such suit, action, investigation, claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, proceeding without the prior written consent of the IndemniteeIndemnitor, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteewhich consent shall not be unreasonably withheld.
(b) Upon receipt The Seller's liability for Losses in connection with any and all matters arising under Section 3.24 (Environmental Matters) of this Agreement shall be limited by the following provisions: (i) Buyer shall not engage any consultant, contractor or similar professional without the prior consent of the Seller, which consent shall not be unreasonably withheld; and (ii) any response by the Buyer to a Notice Release of ClaimHazardous Materials, including without limitation, investigation and remediation, shall be conducted in a commercially reasonable manner designed to meet, but not exceed, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claimminimum applicable requirements of Environmental Laws and shall, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”)extent commercially feasible, employ risk-based corrective action; provided, however, that if, at the time Buyer shall not be required to employ such risk-based corrective action if as a Notice of Claim is submitted result thereof either: (A) title to the Indemnifying Party subject real property will contain a restriction on its use (other than for residential purposes) or (B) the amount use of the Loss in respect thereof has not yet been determined, such 20 day subject real property will be restricted (other than for residential purposes). The Buyer shall provide an accounting of all indemnified amounts at least once every six months. Such accounting shall include a description of work conducted during the relevant period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee form and substance that enables Seller to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partyverify Buyer's compliance with Section 8.2 hereunder.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either The procedures for indemnification shall be as follows:
A. The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, claiming the party seeking indemnification (the “Indemnitee”"Claimant") shall promptly provide give notice to the party from whom indemnification is claimed (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”)") of any claim, whether between the parties or brought by a third party, specifying (i) the factual basis for such claim and (ii) the amount of the claim. Providing If the Notice of Claim claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
B. Following receipt of notice from the Claimant of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim, the Indemnifying Party shall be entitled have thirty (3Q) days to participate therein and, to make such investigation of the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such Indemnitee of such election so to assume the defense thereofnotice, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim. Buyer shall not be liable entitled to apply any of the Indemnitee hereunder for any legal expenses Accounts Receivable collected on behalf of other counsel or any other expenses, in each case subsequently incurred by Seller to a claim as to which Buyer may be entitled to indemnification hereunder. If the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee Claimant and the Indemnifying Party because such representation would be reasonably likely do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy.
C. With respect to result in any claim by a conflict of interestthird party as to which the Claimant is entitled to indemnification hereunder, then the Indemnitee Indemnifying Party shall have the right to defendright, at its own expense, to participate in or assume control of the sole cost defense of such claim, and expense of the Claimant shall cooperate fully with the Indemnifying Party, such action subject to reimbursement for reasonable actual out-of-pocket expenses incurred by all appropriate proceedingsthe Claimant as the result of a request by the Indemnifying Party. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in elects to assume control of the defense against of any such asserted liability. In any eventthird-party claim, the Indemnitee Claimant shall have the right to participate at its own expense in the defense of such asserted liability. No claim at its own expense.
D. If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
E. f the Indemnifying Party, Party does not elect to assume control or otherwise participate in the defense of any such claim or litigationthird party claim, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages it shall be bound by the Indemnifying Person. The Indemnifying Party agrees to afford results obtained in good faith by the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation Claimant with respect to such claim, or the amount thereof, by written notice .
F. The indemnification rights provided in Sections 10.2 and 10.3 hereof shall extend to the Indemnitee (the “Contest Notice”); providedshareholders, howeverdirectors, that ifofficers, at the time a Notice of Claim is submitted to the Indemnifying Party the amount partners employees and representatives of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect Claimant although for the purpose of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss procedures set forth in the Notice of Claimthis Section 10.4, or subsequent Notice of Liability, any indemnification claims by such parties shall be deemed established made by and accepted by through the Indemnifying PartyClaimant.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification An Indemnification Claim (the “Indemnitee”including as a result of a Third Party Claim) shall promptly provide be made by the Indemnitee by delivery of a written notice (the “Notice of Claim”) to the other party or parties obligated Indemnitor, prior to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability expiration of the Indemnifying Party hereunderapplicable Survival Period, requesting indemnification and specifying the general basis on which indemnification is sought and the failure to provide prompt notice amount of asserted Losses (if known or reasonably estimable) and containing (by attachment or otherwise) such other material information as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have concerning such Indemnification Claim. An Indemnitee seeking indemnification pursuant to this Article 10 shall give notice as promptly as is reasonably practicable to the right to defend, at the sole cost and expense Indemnitor of the Indemnifying Partyassertion of any claim, the incurrence of any Loss, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought, and shall promptly give the Indemnitor such action by all appropriate proceedingsadditional information with respect thereto as the Indemnitor may reasonably request. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release rights of the Indemnitee from all Liability to be indemnified hereunder shall not be adversely affected by its failure to give, or its failure to timely give, such notice with respect thereto unless, and if so, only to the extent that, the delay results in the forfeiture by the Indemnitor of material rights and defenses otherwise available to the Indemnitor with respect to such claim or litigation or that does not solely require Indemnification Claim. Notwithstanding the payment of money damages by foregoing, the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of time limitations on the Indemnitee, settle any ’s right to bring an Indemnification Claim on terms set forth above shall not apply to Indemnification Claims relating to Losses that provide for (i) a criminal sanction against the Indemnitee result from or (ii) injunctive relief affecting the Indemniteearise out of intentional misrepresentation or fraud.
(b) Upon receipt of If the Indemnification Claim involves a Notice of Third Party Claim, the Indemnifying Party procedures set forth in Section 10.5 hereof shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered observed by the Indemnitee to and the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartyIndemnitor.
(c) If the Indemnifying Indemnification Claim involves a matter other than a Third Party fails Claim, the Indemnitor shall have thirty (30) days to assume the defense object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim or, having assumed by the defense Indemnitor and settlement of the Indemnification Claim shall be paid in accordance with Section 10.4(d) hereof. If Indemnitor disputes its liability with respect to such Indemnification Claim, fails reasonably to contest such Claim in good faithas provided above, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by then the Indemnitee and the Indemnitor shall attempt to resolve such dispute in good faith for a period of thirty (iii30) days from the date Indemnitee received notice of Indemnitor’s dispute of the Indemnification claim (such period is hereinafter referred to as the “Negotiation Period”). Upon the expiration of the Negotiation Period, if the Indemnitor and the Indemnitee shall have not settle such Claim without soliciting the views agreed upon a resolution of the Indemnifying Party Indemnification Claim, the parties may take such legal action to which they may be entitled under this Agreement and giving them due considerationapplicable Law.
(d) The Indemnifying Party Upon a final determination of the amount of an Indemnification Claim that is binding on both the Indemnitor and the Indemnitee (either by mutual agreement or order of court of competent jurisdiction), the Indemnitor shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid pay the amount of such Indemnification Claim by an Indemnifying Party under this Article that are not paid wire transfer of immediately available funds, within five business ten (10) days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeamount is finally determined.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party An Indemnified Person seeking indemnification under this Section 6 (the “IndemniteeIndemnified Party”) shall promptly provide agrees to give prompt written notice (a “Claim Notice”) to Purchaser upon the assertion of any claim, or the commencement of any Action, in respect of which indemnity may be sought under Section 6.1 (a “Notice of Claim”) to the other party or parties obligated to and will provide indemnification (the “Indemnifying Party”)Purchaser such information with respect thereto that Purchaser may reasonably request. Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the The failure to provide prompt notice as provided herein will relieve the Indemnifying Party deliver a Claim Notice, however, shall not release Purchaser from any of its obligations hereunder but only if and under this Section 6 except to the extent that any such failure materially prejudices the Indemnifying rights, claims or defenses of Purchaser.
(b) If Purchaser acknowledges in writing its obligation to indemnify the Indemnified Party hereunder. In case any such action shall be brought against any Indemnitee and it all Losses that may result from a Claim, Purchaser shall provide a Notice of Claim have the right, upon written notice to the Indemnifying Indemnified Party within ten (10) days of receipt of a Claim Notice from the commencement thereof, the Indemnifying Indemnified Party shall be entitled to participate therein and, to the extent that it shall wishin respect of such Claim, to assume the defense thereof, thereof at the expense of Purchaser with counsel reasonably satisfactory selected by Purchaser and (subject to Section 6.2(c)) to settle such Indemnitee and, after notice from Claim. Purchaser shall also be liable for the Indemnifying reasonable fees and expenses of counsel employed by the Indemnified Party to such Indemnitee of such election so for any period during which Purchaser has failed to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that If Purchaser does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails expressly elect to assume the defense of such Claim orwithin the time period and otherwise in accordance with this clause (b), having assumed the Indemnified Party shall have the sole right to assume the defense and settlement of such Claim with counsel of the Indemnified Party’s choosing but shall not be entitled to settle such Claim without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed). If Purchaser assumes the defense of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its Indemnified Party shall have the right to indemnificationemploy separate counsel and to participate in the defense thereof, may assume, but the fees and expenses of such counsel shall be at the cost expense of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that Indemnified Party unless (i) the Indemnifying employment of such counsel shall have been specifically authorized in writing by Purchaser or (ii) the named parties to the Claim (including any impleaded parties) include both the Indemnified Party and Purchaser, and the representation by counsel to Purchaser of both Purchaser and such Indemnified Party is reasonably likely to present such counsel with a conflict of interest, in which case the Indemnified Party may employ separate counsel of its choosing and that counsel’s reasonable fees and expenses (including expert expenses) shall be permitted to join in paid by Purchaser. If Purchaser assumes the defense and of any Claim, the Indemnified Party shall, at Purchaser’s expense, reasonably cooperate with Purchaser in such defense.
(c) If Purchaser elects to assume the control of the defense of any Claim in accordance with the provisions of Section 6.2(b), Purchaser shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, delayed or conditioned) before entering into any settlement of such Claim if the settlement does not completely, unconditionally and irrevocably release the Indemnified Party from all liabilities and obligations with respect to employ counsel at its own expensesuch Claim, (ii) or the Indemnifying Party shall cooperate with settlement imposes injunctive or other equitable relief against the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationIndemnified Party.
(d) The Indemnifying Party Seller shall make cooperate, and cause its Affiliates to cooperate, in the defense, prosecution or settlement of any payment required Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Following resolution of a Claim or Action that is the subject of a Claim Notice pursuant to the procedures described in this Section 6.2, any indemnification required hereunder shall be made under this Article by prompt payment by Purchaser of the amount of Losses in cash connection therewith as and on demand. Any payments required when bills are received by Purchaser or Losses actually suffered or incurred have been notified to be paid by an Indemnifying Purchaser promptly after receipt of notice of such Losses, but in any event within 30 days following Purchaser’s receipt of any such ▇▇▇▇ or notification.
(f) None of Purchaser or its Affiliates shall have any liability to any Indemnified Party under this Article Section 6 for any punitive damages or exemplary damages except, in each case, any such indemnifiable Losses that are not paid within five business days recovered by a third party in connection with a Claim resulting from a judgment, order, injunction, writ, subpoena, stipulation, award or decree of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeany Governmental Authority (including any ruling or award in any arbitration proceeding).
Appears in 1 contract
Sources: Secondary Stock Purchase Agreement (Taylor Andrew C)
Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise for indemnification under Section 11.1 above, with the exception of claims for litigation expenses in respect of a litigation as to which a notice of claim, as provided below in this Section 11.2, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2ongoing basis, the party seeking entitled to indemnification (the “Indemnitee”"Indemnified Party") shall promptly provide notice notify the party from whom indemnification is sought (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”). Providing ") of such claim and, when known, the Notice facts constituting the basis for such claim; provided, however, that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall be a condition precedent give such notice thereof to any Liability of the Indemnifying Party hereundernot later than 10 business days prior to the time any response to the asserted claim is required, if possible, and in any event within 5 business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to provide prompt notice as provided herein will so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only from any liability for indemnification it may have if and to the extent that such failure materially prejudices the Indemnifying Party hereundershall not have been prejudiced by such omission. In case the event of any such action shall be brought against any Indemnitee and it shall provide claim for indemnification resulting from or in connection with a Notice of Claim to claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof; provided, however, that the Indemnifying Party shall first have agreed in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses attributable to such claim or Legal Proceeding; and, provided, further, that Seller shall not be entitled to assume the commencement thereofdefense of any claim or Legal Proceeding against Buyer or HOLL for Taxes with respect to a period ending after the Closing ▇▇▇▇. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein andselect counsel and take all steps necessary in the defense thereof; provided, however, that no settlement shall be made without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the extent proposed amount of such settlement); provided, further, that it the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall wish, to not compromise or settle such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume the defense thereofof any such claim or Legal Proceeding in accordance with the terms hereof, with counsel reasonably satisfactory to such Indemnitee the Indemnified Party may defend (and, in the case of any claim or Legal Proceeding against Buyer or HOLL for Taxes with respect to a period ending after the Closing ▇▇▇▇, shall defend) against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice from of the same to the Indemnifying Party to and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld) on such Indemnitee of such election so to assume terms as the defense thereofIndemnified Party may deem appropriate, and the Indemnifying Party shall not be liable to will promptly indemnify the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, Indemnified Party in each case subsequently incurred by the Indemnitee, in connection accordance with the defense thereof other than reasonable costs provisions of investigationthis Section 11.2; provided, however, that if the Indemnitee reasonably believes that counsel for Indemnified Party does not obtain the prior written consent of the Indemnifying Party canto any such settlement, and such written consent is not represent both unreasonably withheld by the Indemnitee and Indemnifying Party, the Indemnified Party shall not be entitled to indemnification hereunder from such Indemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 11.2 to the contrary, if, in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 11.2, (i) the Indemnifying Party because shall not have promptly employed counsel reasonably satisfactory to the Indemnified Party or (ii) such representation would Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be reasonably likely one or more legal defenses available to result in a conflict of interestit that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnitee Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall not have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in direct the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release action on behalf of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Indemnified Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt If Buyer or HOLL is the Indemnifying Party, all payments by the Indemnifying ▇▇▇▇y pursuant to this Article XI shall be in cash and in immediately available funds. If Seller is the Indemnifying Party, Seller, in its sole discretion, may elect to make all payments pursuant to this Article XI in the form of a Notice (m) cash; (n) shares of Claimthe Stock Consideration valued at the average closing price of the Common Stock on the NASDAQ National Market for the five (5) business days preceding the Closing Date; or (o) some combination of (m) and (n).
(c) Notwithstanding any other provision in this Agreement, in the absence of fraud or willful misconduct on the part of the Indemnifying Party or any of its employees or agents, an Indemnifying Party shall have 20 calendar days not be responsible for Losses indemnifiable under this Article XI in excess of Nine Hundred Thousand Dollars (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”$900,000); provided, however, that if, at the time a Notice of Claim is submitted foregoing cap shall not apply to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only any Losses in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) Taxes for which Seller has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationindemnified Buyer under Section 11.1(a).
(d) The Indemnifying Party Except as provided in Section 13.1, the indemnification obligations set forth in Section 11.1 shall make expire upon the latter of the filing of a Certificate of Dissolution of Seller with the California Secretary of State or December 31, 2001; provided that such indemnification obligations shall survive with respect to any payment required to be claims made under this Article in cash and on demand. Any payments required to be paid by an Indemnified Party to the Indemnifying Party under this Article that are not paid within five business days of the date on which Section 11.1 prior to such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteelatter date.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event Seller (and after any transfer of its assets to a liquidating trust, the trustee of such trust) will act as representative (the "Representative") of the Seller and the TradeOut Stockholders and as the attorney-in-fact and agent for and on behalf of each of them with respect to demands for indemnification made under this Section 10. The Representative will take any and all actions and make any decisions required or permitted to be taken by the Representative under this Agreement, including the power to agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, demands for indemnification made pursuant to this Section 5.1 10. The Representative will have the authority and power to act on behalf of Seller and each TradeOut Stockholder with respect to the disposition, settlement or 5.2other handling of all demands for indemnification and all rights or obligations arising under this Section 10. Seller and each of the TradeOut Stockholders will be bound by all actions taken and documents executed by the Representative in connection with this Section 10, and Buyer will be entitled to rely on any action or decision of the Representative. So long as no Distribution has occurred and Seller has not been dissolved, Seller shall select any substitute or successor Representative upon written notice to Buyer. From and after the earlier of a dissolution of Seller or a Distribution, TradeOut Stockholders holding a majority of the outstanding shares of Seller's capital stock as of the date of this Agreement shall have the power to substitute any TradeOut Stockholder (with such TradeOut Stockholder's consent and upon written notice to Buyer) as a successor Representative hereunder. It shall be the responsibility of Seller and, from and after a Distribution, the party seeking TradeOut Stockholders to keep the contact information set forth in Section 11.7(c) current at all times. Buyer may rely absolutely at any time on the information set forth in Section 11.7(c), as such information may be updated from time to time by TradeOut or the TradeOut Stockholders, as the case may be, as provided in Section 11.7, for contact of the Representative pursuant to the terms of this Agreement, and any notice for the Representative sent in reliance on such information shall be effective, if sent pursuant to the terms of this Agreement, even if such information shall no longer be current.
(b) After any Buyer Indemnitee becomes aware of the existence of any potential claim for indemnification under Section 10.3 for Loss by any of the Buyer Indemnitees, such Buyer Indemnitee shall give written notice of such claim to the Representative (the “Indemnitee”) shall promptly provide notice (the “a "Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”"). Providing the Each Notice of Claim by the Buyer Indemnitee shall contain (i) the Buyer Indemnitee's good faith estimate of the reasonably foreseeable maximum amount of the alleged Loss arising from the claim and (ii) a brief description, in reasonable detail, of the facts, circumstances or events giving rise to the alleged Loss based on the Buyer Indemnitee's good faith belief thereof, and shall be a condition precedent delivered to any Liability of the Indemnifying Party hereunderRepresentative no later than the Release Date, and if delivered by such date, such claim shall survive the failure to provide prompt notice as provided herein will Release Date until final resolution thereof. Until the Release Date, no delay on the part of Buyer or any Buyer Indemnitee shall relieve the Indemnifying Party Representative, Seller or any TradeOut Stockholder from any of its obligations hereunder but only if under this Section 10.
(c) Buyer or the Buyer Indemnitees shall defend, and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defendcompromise or settle and select counsel for, at any action, suit, proceeding or claim by any third party which may give rise to a right to indemnification under this Agreement ("Third Party Claims") and the sole cost reasonable costs and expense of expenses incurred by Buyer or the Indemnifying PartyBuyer Indemnitee in connection with such defense (including reasonable attorney's fees, such action by all appropriate proceedingsother professionals' and experts' fees and court or arbitration costs) will be included in the Loss for which the Buyer Indemnitee may seek indemnity pursuant to a demand for indemnification made hereunder. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee Representative shall have the right to participate at its own expense in receive copies of all pleadings, notices and communications with respect to any Third Party Claims to the defense extent that receipt of such asserted liability. documents by the Representative does not affect any privilege relating to the Buyer Indemnitees, and may participate in settlement negotiations with respect to the Third Party Claim.
(d) No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or Buyer Indemnitee shall enter into any settlement that does not include as of any action, suit claim or proceeding by any third party which is related to an unconditional term thereof asserted or planned Third Party Claim without giving prior written Notice to the release Representative setting forth the terms of the Indemnitee from all Liability in respect proposed settlement. The Representative shall respond to such claim or litigation or that does not solely require the payment written notice within ten days of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee receipt thereof and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for either (i) a criminal sanction against disapprove the Indemnitee or settlement but assume liability for the Third Party Claim, (ii) injunctive relief affecting disapprove the Indemniteesettlement and contest any obligation to indemnity the Buyer Indemnitee with regard to Losses asserted in such Third Party Claim, (iii) approve the settlement, reserving the Seller's and TradeOut Stockholders' right, as applicable, to contest the Third Party Claim, or (iv) approve the settlement and consent to the Third Party Claim. If the Representative makes no response to such written notice, the Representative shall be deemed to have elected option (iv). When the Representative chooses, or is deemed to have chosen, option (ii) or (iii), the issue of whether the Buyer Indemnitee has a right to indemnity under this Section 10 shall be resolved by arbitration as a Contested Claim hereunder.
(be) Upon receipt Any Notice of Claim received by the Representative pursuant to Section 10.3(b) will be resolved as follows:
(i) In the event that, within twenty days after a Notice of Claim, Claim is received by the Indemnifying Party shall have 20 calendar days Representative pursuant to this Section 10 (or such shorter period set forth in Section 10.3(d), if applicable), the Representative does not contest such Notice of Claim in writing to Buyer as provided in this Section 10 (an "Uncontested Claim"), the Representative will be conclusively deemed to have consented to the recovery by the Buyer Indemnitee of the full amount of Loss specified in the Notice of Claim in accordance with subsection 10.3(b) by increasing the Indemnity Share Minimum Threshold and Indemnity Share Maximum Threshold by an amount equal to two times such Loss (as provided in Section 10.4(a)(i)), and, without further notice, to have stipulated to the entry of a final judgment for damages against, as the case may be appropriate under be, Seller or, from and after a Distribution, the circumstancesTradeOut Stockholders for such amount in any court having jurisdiction over the matter.
(ii) to contest its indemnification obligation with respect to such claim, or In the amount thereof, by event that the Representative gives the Buyer Indemnitee written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time contesting all or any portion of a Notice of Claim is submitted to within the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 twenty day period specified in respect ofSection 10.3(e)(i) (in either case, but only in respect of the amount of the Lossa "Contested Claim"), shall not commence until then such Contested Claim will be resolved by either (A) a further written notice (the “Notice of Liability”) has been sent or delivered settlement agreement executed by the Representative and the Buyer Indemnitee to (upon the Indemnifying Party setting forth the amount execution of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount which Buyer shall be promptly paid over immediately entitled to increase the Indemnitee. If no Indemnity Share Minimum Threshold and Indemnity Share Maximum Threshold by an amount equal to two times such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth (as provided in Section 10.4(a)(i))) or (B) in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense absence of such Claim ora written settlement agreement, having assumed by binding arbitration between the defense Representative and settlement of such Claim, fails reasonably to contest such Claim the Buyer Indemnitee in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate accordance with the Indemnitee in the defense terms and settlement provisions of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationSection 10.4.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise for indemnification under Section 11.2, 11.3 or 14.1, with the exception of claims for litigation expenses in respect of litigation as to which a notice of claim, as provided in this Section 11.4, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to ongoing basis, and, except as otherwise provided in Section 5.1 or 5.214.4, the party seeking entitled to indemnification (the “Indemnitee”"INDEMNIFIED PARTY") shall promptly provide notice notify the party from which indemnification is sought (the “Notice "INDEMNIFYING PARTY") of Claim”) such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim -------- ------- for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereundernot later than ten Business Days prior to the time any response to the asserted claim is required, if possible, and the in any event within fifteen Business Days following receipt of notice thereof (provided that failure to provide prompt notice as provided herein will notify the Indemnifying Party shall -------- not relieve the Indemnifying Party of its obligations hereunder but only if and any liability it may have to the Indemnified Party, except to the extent that such failure materially prejudices the Indemnifying Party hereunderdemonstrates that it has been actually prejudiced by such failure). In case the event of any such action shall be brought against any Indemnitee and it shall provide claim for indemnification resulting from or in connection with a Notice of Claim to claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof by written notice within 30 calendar days, using counsel that is reasonably satisfactory to the Indemnified Party. If an Indemnifying Party assumes the defense of the commencement thereofany such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, take all steps necessary in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs including the settlement of investigationany case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that if the Indemnitee reasonably believes that Indemnified -------- ------- Party may, at its own expense, participate in any such proceeding with the counsel for of its choice without any right of control thereof. If the Indemnifying Party cannot represent both has assumed the Indemnitee defense of any claim or Legal Proceeding by a third party as provided herein, (A) it shall be conclusively established for the purposes hereof that the claims made in that Legal Proceeding are within the scope of and subject to indemnification hereunder, and the Indemnifying Party because shall promptly indemnify the Indemnified Party in accordance with the terms of this Article XI, and (B) the Indemnifying Party shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such representation would third party of the Indemnified Party), or consent to the entry of any judgment that does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party without the Indemnified Party's prior written consent, which shall not be reasonably likely unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to result this Article XI, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information. So long as the Indemnifying Party is in a conflict of interestgood faith defending such claim or proceeding, then the Indemnitee Indemnified Party shall have not compromise or settle such claim without the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingswhich consent shall not be unreasonably withheld, conditioned or delayed. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in does not assume the defense of any such claim or litigation, shall, except litigation in accordance with the written consent of each Indemniteeterms hereof, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or that does not solely require litigation (after giving prior written notice of the payment of money damages by same to the Indemnifying Person. The Indemnifying Party agrees to afford and obtaining the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives prior written consent of or counsel for such Persons. In no event shall the Indemnifying Party, without which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the written consent Indemnified Party may reasonably deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteethis Article XI.
(b) Upon receipt of a Notice of ClaimIf Seller, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, assumes defense of a claim or Legal Proceeding under and subject to Section 11.4(a) and such claim or Legal Proceeding has been brought by a customer or supplier of the defense Business of any Acquired Company, subject to any limitation under applicable Law and settlement of such Claim; providedin addition to those rights afforded Purchaser as Indemnified Party under Section 11.4(a), however, that (i) the Indemnifying Party Seller shall be permitted to join in the defense provide Purchaser with a timely and settlement reasonably detailed account of such Claim claim or Legal Proceeding and copies of all written materials relating to employ counsel at its own expensesuch claim or Legal Proceeding, (ii) the Indemnifying Party Seller shall cooperate consult with the Indemnitee Purchaser before taking any significant action in the defense and settlement of connection with such Claim in any manner reasonably requested by the Indemnitee and claim or Legal Proceeding, (iii) the Indemnitee Seller shall not settle consult with Purchaser and offer Purchaser an opportunity to comment before submitting any written materials to any Governmental Body prepared or furnished in connection with such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentclaim or Legal Proceeding, and the Indemnifying Party (iv) Seller shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date defend such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeclaim or Legal Proceeding diligently and in good faith.
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Procedures for Indemnification. (a) If there occurs In the event an event that either party asserts is an indemnifiable event pursuant to Section 5.1 Indemnified Party shall have a Claim for Losses under this Article VII, Buyer or 5.2Seller (on behalf of itself or its affiliates), as the party seeking indemnification (the “Indemnitee”) case may be, shall promptly provide send written notice of such Claim (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing Such notice must (i) state the amount of Losses incurred or paid by the Indemnified Party to the extent reasonably known at the time of the Notice of Claim, (ii) specify in reasonable detail to the extent reasonably known at the time of the Notice of Claim shall be a condition precedent to any Liability the individual items of Losses included in the Indemnifying Party hereunderamount stated, the date each such item was incurred or paid, and the failure nature of the misrepresentation, breach of warranty or covenant to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and which such Loss is related (including specific references to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel applicable representation or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present atcovenant), and to participate in(iii) be executed by a duly authorized officer of Buyer or Seller, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against as the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteecase may be.
(b) Upon receipt of a Notice of Claim, the The Indemnifying Party shall have 20 calendar days may make a written objection (or such shorter period as may be appropriate under the circumstances“Objection”) to contest its any Claim for indemnification obligation with respect delivered pursuant to such claim, or the amount thereof, by written notice Section 7.4(a). The Objection shall be delivered to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice Indemnified Party within 30 days after delivery of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If In the Indemnifying Party fails event of a dispute that the Parties are able to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faithresolve, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense Parties shall prepare and settlement of sign a memorandum setting forth such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentagreement, and the Indemnifying Party shall pay to the Indemnitee, Indemnified Party by wire transfer of immediately available funds to an account designated by such Indemnified Party the agreed-upon demand, interest at amount of the rate Loss (if any) within five days of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment such written memorandum.
(d) If, within thirty (30) days of delivery of the notice of Objection (as such delinquent sumsperiod may be extended by mutual agreement between the Parties), the Parties are unable to resolve a dispute over the Claim for indemnification to which interest the Objection has been made, the dispute shall be considered resolved exclusively by binding arbitration, pursuant to be Losses of the IndemniteeSection 7.10.
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Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event Subject to Sections 13.6 and 13.7 of this Agreement, if a Party seeking indemnification pursuant to this Section 5.1 or 5.2, the party seeking indemnification 13 (the “IndemniteeIndemnified Party”) shall promptly provide notice claim to have suffered a Loss for which indemnification is available under Sections 13.2 or 13.3, as the case may be (for purposes of this Section 13.5, regardless of whether such Indemnified Party is entitled to receive a payment in respect of such claim), the “Notice of Claim”) Indemnified Party shall notify the Party from whom indemnification with respect to the other party or parties obligated to provide indemnification such claim is sought (the “Indemnifying Party”) in writing of such claim prior to the last survival date with respect thereto pursuant to Section 13.1(a), which written notice shall describe the nature of such claim, the facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the time such claim is made (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party). Providing In the Notice of Claim shall be a condition precedent to any Liability of event that within forty-five (45) days after the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve receipt by the Indemnifying Party of its obligations hereunder but only if and to such a written notice from the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofIndemnified Party, the Indemnifying Indemnified Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice not have received from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect objection to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount claim shall be promptly paid over conclusively presumed and considered to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party have been assented to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted approved by the Indemnifying Party.
(cb) If within the forty-five (45) day period described in Section 13.5(a) above the Indemnified Party shall have received from the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of a notice setting forth the Indemnifying Party, the defense and settlement of ’s objections to such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, claim and the Indemnifying Party Party’s reasons for such objection, then the Parties shall pay follow the procedures set forth in Section 14 below with respect to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment resolution of such delinquent sums, which interest shall be considered to be Losses of the Indemniteematter.
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Procedures for Indemnification. (a) If there occurs A Lessor Indemnitee or Lessee Indemnitee, as the case may be (for purposes of this Section 11.3, an event that either “Indemnified Party”), shall give the indemnifying party asserts is under Section 11.1 and Section 11.2, as applicable (for purposes of this Section 11.3, an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing , prompt written notice (a “Claim Notice”) of any matter which it has determined has given or could give rise to a right of indemnification under this Lease Agreement (a “Claim”) stating the Notice of Claim shall be a condition precedent to any Liability amount of the Indemnifying Party hereunderLoss, if known, and method of computation thereof, containing a reference to the provisions of this Lease Agreement in respect of which such right of indemnification is claimed or arises; provided, that the failure to provide prompt such notice as provided herein will relieve shall not release the Indemnifying Party of from its obligations hereunder but only if and under this Article XI except to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee extent, and it shall provide a Notice of Claim only to the Indemnifying Party of the commencement thereofextent, the Indemnifying Party shall be entitled to participate therein and, is prejudiced by such failure or to the extent the survival period, if applicable, expires prior to the giving of such notice. The Indemnifying Party shall have [***] after its receipt of a Claim Notice to give notice to the Indemnified Party, in writing, either denying its obligations to, or agreeing to fully, indemnify and defend the Claim.
(b) If the Indemnifying Party notifies the Indemnified Party that it shall wishagrees to fully indemnify and defend the Indemnified Party against the Claim in accordance with Section 11.3(a), then the Indemnifying Party will have the right to assume and thereafter conduct (at its sole expense) the defense thereof, of the Claim with counsel of its choice reasonably satisfactory to such Indemnitee andthe Indemnified Party; provided, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, that the Indemnifying Party shall not be liable consent to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that with respect to the Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, delayed or conditioned) unless the judgment or proposed settlement involves only the payment of money damages and (i) does not include impose an injunction or other equitable relief upon the Indemnified Party and (ii) includes as an unconditional term thereof the giving of a release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation liability with respect to such claim, Claim by each claimant or the amount thereof, by written notice plaintiff to the Indemnitee (the “Contest Notice”); provided, however, each Indemnified Party that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of such Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If (i) the Indemnifying Party fails to assume the defense of a Claim in accordance with Section 11.3(a), (ii) an Indemnified Party determines in good faith that an adverse determination with respect to the proceeding giving rise to such Claim orfor indemnification would be materially detrimental to or injure the Indemnified Party’s reputation or future business prospects, having assumed (iii) the defense Claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iv) the Claim seeks an injunction or equitable relief against the Indemnified Party, (v) under applicable standards of professional conduct, a conflict of interest on any significant issue related to such proceeding exists between the Indemnifying Party, on the one hand, and settlement of an Indemnified Party, on the other hand, or (vi) the Indemnifying Party is failing to vigorously prosecute or defend such Claim, fails reasonably then, in each case, upon notice to contest such Claim in good faiththe Indemnifying Party, the IndemniteeIndemnified Party may, without waiving in its right sole discretion, retain counsel satisfactory to indemnification, may assume, at it to assume such defense on behalf of and for the cost sole account and risk of the Indemnifying Party, and in the defense and settlement case of such Claim; provided, however, that clauses (i) through (vi) the Indemnifying Party shall be permitted to join in the defense pay all reasonable fees and settlement expenses of such Claim and to employ counsel at its own expense, (ii) for the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentIndemnified Party, and the Indemnifying Party shall pay to cooperate in the Indemnitee, immediately upon demand, interest at defense of any such matter. In the rate of 10% per annum, not to exceed event that the maximum nonusurious rate allowed by applicable Law, from Indemnified Party assumes the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses conduct and control of the Indemniteedefense of a Claim, then the Indemnifying Party shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
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Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise for indemnification under Section 11.1 above, with the exception of claims for litigation expenses in respect of a litigation as to which a notice of claim, as provided below in this Section 11.2, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2ongoing basis, the party seeking entitled to indemnification (the “Indemnitee”"Indemnified Party") shall promptly provide notice notify the party from whom indemnification is sought (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”). Providing ") of such claim and, when known, the Notice facts constituting the basis for such claim; provided, however, that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall be a condition precedent give such notice thereof to any Liability of the Indemnifying Party hereundernot later than 10 business days prior to the time any response to the asserted claim is required, if possible, and in any event within 5 business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to provide prompt notice as provided herein will so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only from any liability for indemnification it may have if and to the extent that such failure materially prejudices the Indemnifying Party hereundershall not have been prejudiced by such omission. In case the event of any such action shall be brought against any Indemnitee and it shall provide claim for indemnification resulting from or in connection with a Notice of Claim to claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof; provided, however, that the Indemnifying Party shall first have agreed in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses attributable to such claim or Legal Proceeding; and, provided, further, that Seller shall not be entitled to assume the commencement thereofdefense of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Closing Date. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein andselect counsel and take all steps necessary in the defense thereof; provided, however, that no settlement shall be made without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the extent proposed amount of such settlement); provided, further, that it the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall wishnot compromise or settle such claim without the prior written consent of the Indemnifying Party, to which consent shall not be unreasonably withheld. If the Indemnifying Party does not assume the defense thereofof any such claim or Legal Proceeding in accordance with the terms hereof, with counsel reasonably satisfactory to such Indemnitee the Indemnified Party may defend (and, in the case of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Closing Date, shall defend) against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice from of the same to the Indemnifying Party to and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld) on such Indemnitee of such election so to assume terms as the defense thereofIndemnified Party may deem appropriate, and the Indemnifying Party shall not be liable to will promptly indemnify the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, Indemnified Party in each case subsequently incurred by the Indemnitee, in connection accordance with the defense thereof other than reasonable costs provisions of investigationthis Section 11.2; provided, however, that if the Indemnitee reasonably believes that counsel for Indemnified Party does not obtain the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the prior written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claimany such settlement, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes such written consent is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted not unreasonably withheld by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of Indemnified Party shall not be entitled to indemnification hereunder from such Claim; providedIndemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 11.2 to the contrary, howeverif, that in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 11.2, (i) the Indemnifying Party shall be permitted not have promptly employed counsel reasonably satisfactory to join in the defense and settlement of such Claim and to employ counsel at its own expense, Indemnified Party or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall cooperate with not have the Indemnitee in right to direct the defense and settlement of any such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views action on behalf of the Indemnifying Party and giving them due considerationIndemnified Party.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs a party entitled to indemnification under this Section 10 (an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice asserts that a party obligated to indemnify it under this Section 10 (the an “Notice of ClaimIndemnitor”) has become obligated to such Indemnitee pursuant to Section 10.2 or 10.3, as the case may be, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnitor may become obligated to an Indemnitee hereunder, such Indemnitee shall give prompt written notice thereof to the other party or parties obligated Indemnitor; provided, however, that no delay in delivering such written notice to provide indemnification (the “Indemnifying Party”). Providing Indemnitor shall relieve the Notice of Claim shall be a condition precedent to Indemnitor from any Liability of the Indemnifying Party obligation hereunder, unless, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and then solely to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofthat, the Indemnifying Party Indemnitor is actually prejudiced thereby.
(b) The Indemnitor shall be entitled have the right, at its sole cost and expense, to participate therein in, and, to the extent that it shall may wish, to assume the defense thereofof, with counsel reasonably satisfactory to such any suit, action, investigation, claim or proceeding asserted by any third party against an Indemnitee and, after notice from that may result in the Indemnifying Party to incurrence by such Indemnitee of Losses for which such election so Indemnitee would be entitled to assume the defense thereof, the Indemnifying Party shall not be liable indemnification pursuant to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationthis Section 10; provided, however, that the Indemnitor shall not be entitled to assume the defense of any such suit, action, investigation, claim or proceeding, if (a) the Indemnitee reasonably believes determines that counsel for the Indemnifying Party cannot represent both amount of the Indemnitee and the Indemnifying Party because Losses in respect of such representation suit, action, investigation, claim or proceeding, if successful, would be reasonably likely to result in a conflict exceed the Indemnitor’s liability under this Agreement or (b) such suit, action, investigation, claim or proceeding involves an allegation of interest, then the violation of Applicable Law (including fiduciary and regulatory requirements thereunder) or seeks any non-monetary remedy. The Indemnitee shall have the right to defendright, at but not the sole cost and expense of the Indemnifying Partyobligation, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense thereof by counsel of the Indemnitee’s choice (except that the Indemnitor shall be responsible for the fees and expenses of one separate co-counsel for all Indemnitees to the extent the Indemnitee is advised, in writing by its counsel, that either (i) the counsel the Indemnitor has selected has a conflict of interest or (ii) there are legal defenses available to the Indemnitee that may be materially different from or additional to those available to the Indemnitor) and the Indemnitee shall in any event cooperate with and assist the Indemnitor to the extent reasonably possible. If the Indemnitor does not timely assume the defense of, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the Indemnitee shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and the Indemnitee shall be entitled to recover the entire cost thereof from the Indemnitor, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such asserted liability. No Indemnifying Partysuit, action, investigation, claim or proceeding, in each case subject to the limitations set forth herein; provided that the Indemnitee shall not settle any such suit, action, investigation, claim or proceeding without the consent of the Indemnitor (such consent not to be unreasonably withheld, conditioned or delayed) and shall keep the Indemnitor reasonably apprised of the status of the applicable suit, action, investigation, claim or proceeding and any efforts to settle the same upon request of the Indemnitor.
(c) With respect to any suit, action, investigation, claim or proceeding that the Indemnitor assumes the defense of any such claim or litigationin accordance with Section 10.4(b), shall, except with the written consent of each Indemnitee, Indemnitor shall not consent to the entry of any a judgment or enter into any settlement that with respect thereto, unless (i) the judgment or settlement provides solely for the payment of monetary damages and does not include as an unconditional term thereof impose injunctive or other equitable relief against the release of Indemnitee and (ii) the plaintiff or claimant in the matter releases the Indemnitee from all Liability liability or wrongdoing with respect thereto, in respect to such claim or litigation or that does not solely require the payment each case of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee clauses (i) and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party(ii) above, without the written consent of the IndemniteeIndemnitee (not to be unreasonably withheld or delayed). For the avoidance of doubt, settle the Indemnitor shall not consent to the entry of a judgment or enter into any Claim on terms that provide settlement with respect to any suit, action, investigation, claim or proceeding for (i) a criminal sanction against which the Indemnitee or (ii) injunctive relief affecting Indemnitor does not assume the Indemniteedefense in accordance with Section 10.4(b).
(bd) Upon receipt In all cases in determining whether there has been a breach of a Notice representation or warranty by the Buyer or any Seller for purposes of ClaimSection 10, or in determining the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation amount of any Losses with respect to a breach of a representation or warranty by the Buyer or any Seller for purposes of Section 10, such claimrepresentations and warranties shall be read without regard to any materiality qualifier (including, without limitation, any reference to Material Adverse Effect or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”)material adverse effect) contained therein; provided, however, that if, at the time a Notice of Claim is submitted this Section 10.4(d) shall not apply to the Indemnifying Party the amount of the Loss representations or warranties contained in respect thereof has not yet been determinedSection 5.7(a), such 20 day period in respect ofSection 5.20, but only in respect of the amount of the LossSection 5.21(a), shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claimSection 5.21(k), and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of ClaimSection 5.25, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartySection 6.10.
(ce) If The indemnification provided for in Section 10 shall survive any investigation at any time made by or on behalf of the Indemnifying Party fails to assume Indemnitee or any knowledge or information that the defense Indemnitee may have.
(f) All Losses recoverable by an Indemnitee shall be net of (i) insurance proceeds received by such Claim orIndemnitee or its Affiliates and (ii) any other amounts recovered and received by an Indemnitee or its Affiliates from a third party or the Funds, having assumed the defense and settlement whether by way of such Claimpayment, fails reasonably to contest such Claim in good faithdiscount, the Indemniteecredit, off-set, counterclaim, indemnification (including, without waiving its right limitation, indemnification by any Fund), contribution or otherwise, net of any costs incurred to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of pursue such Claimrecovery; provided, however, that (i) an Indemnitee shall have no obligation to seek recovery from insurance or any other indemnification, contribution or other payment. If any such insurance proceeds and/or other amounts are received by an Indemnitee or its Affiliates after the Indemnifying Party shall be permitted Indemnitor pays any amount pursuant to join in the defense and settlement of such Claim and to employ counsel at its own expensethis Section 10, (ii) the Indemnifying Party shall cooperate with the Indemnitee in shall promptly repay to the defense and settlement of Indemnitor the amount such Claim in any manner reasonably requested Indemnitor would not have had to pay pursuant to this Section 10 had such proceeds and/or other amounts been received by the Indemnitee and (iii) or its Affiliates prior to such Indemnitor’s payment under this Section 10 to the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationIndemnitee.
(dg) The Indemnifying Party Each party acknowledges and agrees that, except as provided in Section 7.5(d), Section 8.4(d) and Section 15.10 or in the case of fraud with scienter, its sole and exclusive remedy following the Closing with respect to any and all claims under or relating to this Agreement shall make be pursuant to the indemnification provisions set forth in this Section 10.
(h) No Indemnitee shall be entitled to double recovery for any payment required to be made under this Article in cash and on demand. Any payments required to be paid indemnifiable Loss by an Indemnifying Party under this Article that are not paid within five business days reason of the date on which state of facts giving rise to such obligation becomes final shall thereafter be deemed delinquentLoss, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, even though such Loss may have resulted from the date such payment becomes delinquent to the date breach of payment of such delinquent sums, which interest shall be considered to be Losses more than one of the Indemniteerepresentations, warranties and covenants, or any other indemnity, in this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (P10, Inc.)
Procedures for Indemnification. To the extent that the Existing Partners are the Indemnitor under an Indemnification Claim arising pursuant to Section 11.3 above, amounts required to be paid in respect of such Indemnification Claim will be paid to the Post-Amendment Partnership. If within thirty (30) days after the date on which written notice of an Indemnification Claim arising pursuant to Section 11.3(ii) above has been given, the Indemnitor shall acknowledge in writing to the Indemnitee and without qualification its indemnification obligations as provided in Section 11.3(ii); then, except as hereinafter provided, the Indemnitee shall not, and the Indemnitor shall, have the right to (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 contest, defend, litigate or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of settle such Indemnification Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and (b) assert any counter-claim or cross-claim or otherwise exercise any rights the failure Existing Partners or Partnership may have directly related to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Indemnification Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wishhas made a payment to Indemnitee pursuant to its indemnification obligations in respect of such Indemnification Claim, to assume the defense thereofretain any judgments, with counsel reasonably satisfactory to such Indemnitee andawards, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of settlements or other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, benefits procured in connection with any such action ((a) and (b) collectively, “Defend the defense thereof other than reasonable costs of investigation; provided, however, that if Claim”) and the Indemnitee reasonably believes that counsel for shall cooperate with the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result Indemnitor in a conflict of interestconnection therewith, then the at Indemnitor’s expense. The Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action be represented by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in any such contest, defense, litigation or settlement conducted by the defense of Indemnitor provided that the Indemnitee shall be entitled to reimbursement therefor if the Indemnitor shall lose its right to contest, defend, litigate and settle such asserted liabilityIndemnification Claim as herein provided. No Indemnifying PartyThe Indemnitor shall lose its right to Defend the Claim if it shall fail to diligently contest, defend, litigate or settle, in its sole and reasonable discretion, the defense Indemnification Claim. So long as the Indemnitor has not lost its right and/or obligation to Defend the Claim as herein provided, the Indemnitor shall have the exclusive right to Defend the Claim and shall have the exclusive right, in its discretion exercised in good faith, and upon the advice of counsel, to settle any such claim matter, either before or after the initiation of litigation, shallat such time and upon such terms as it deems fair and reasonable, except provided that at least ten (10) days prior to any such settlement, written notice of its intention to settle shall be given to the Indemnitee, and provided that as to any such Indemnification Claim that is material, the Indemnitor will provide such information as Indemnitee may from time to time reasonably request in connection therewith, consult with Indemnitee as to the contest, litigation and settlement relating to such Indemnification Claim, and in good faith take into account Indemnitee’s advice and input in connection therewith. All expenses (including without limitation attorneys’ fees) incurred by the Indemnitor in connection with the written consent of each Indemniteeforegoing shall be paid by the Indemnitor. Notwithstanding the foregoing, consent in connection with any settlement negotiated by an Indemnitor, no Indemnitee shall be required by an Indemnitor to entry of any judgment or (x) enter into any settlement that does not include as an unconditional term thereof the release of delivery by the claimant or plaintiff to the Indemnitee of a release from all Liability liability in respect to of such claim or litigation or litigation, (y) enter into any settlement that does not solely require the payment of money damages attributes by the Indemnifying Person. The Indemnifying Party agrees its terms liability to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (iiz) injunctive relief affecting consent to the Indemnitee.
(bentry of any judgment that does not include as a term thereof a full dismissal of the litigation or proceeding with prejudice. No failure by an Indemnitor to acknowledge in writing its indemnification obligations Section 11.3(ii) Upon receipt shall relieve it of such obligations to the extent they exist. If an Indemnitee is entitled to indemnification against such an Indemnification Claim, and the Indemnitor fails to accept a tender of, or assume, the defense of a Notice of Indemnification Claim pursuant to its obligation under Section 11.3(ii), or if, in accordance with the foregoing, the Indemnitor shall lose its right to Defend the Claim, the Indemnifying Party Indemnitee shall have 20 calendar days (the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in good faith and upon the advice of counsel, to Defend the Claim, and may settle such Indemnification Claim, either before or such shorter period as may be appropriate under after the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that ifinitiation of litigation, at the such time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, and upon such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due terms as the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, deems fair and reasonable, provided that at least ten (10) days prior to any such settlement, written notice of its intention to settle is given to the IndemniteeIndemnitor. If, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Partypursuant hereto, the defense and settlement of Indemnitee so contests, defends, litigates or settles such an Indemnification Claim; , for which it is entitled to indemnification hereunder as hereinabove provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle be reimbursed by the Indemnitor for the Indemnification Claim, including reasonable attorneys’ fees and other expenses of defending, contesting, litigating and/or settling such Indemnification Claim without soliciting which are incurred from time to time, forthwith following the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay presentation to the Indemnitee, immediately upon demand, interest at the rate Indemnitor of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.itemized bills for said attorneys’ fees and other expenses. ]
Appears in 1 contract
Sources: Contribution Agreement (Strategic Hotel Capital Inc)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by the Indemnitee by delivery of a condition precedent written declaration to any Liability of the Indemnifying Party hereunder, Indemnitor requesting indemnification and specifying the basis on which indemnification is sought and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party amount of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein asserted Losses and, to in the extent that it shall wishcase of a Third Party Claim, to assume the defense thereof, with counsel reasonably satisfactory to containing (by attachment or otherwise) such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then information as the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, concerning such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Third Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeClaim.
(b) Upon receipt of If the Indemnification Claim involves a Notice of Third Party Claim, the Indemnifying Party procedures set forth in Section 12.4 hereof shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered observed by the Indemnitee to and the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartyIndemnitor.
(c) If the Indemnifying Indemnification Claim involves a matter other than a Third Party fails Claim, the Indemnitor shall have thirty (30) Business Days to assume the defense object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim orby the Indemnitor and the Indemnification Claim shall be paid in accordance with Section 12.3(d) hereof. If an objection is timely interposed by the Indemnitor, having assumed then the defense Indemnitee and settlement the Indemnitor shall negotiate in good faith for a period of sixty (60) Business Days from the date (such period is hereinafter referred to as the “Negotiation Period”) the Indemnitee receives such objection. After the Negotiation Period, if the Indemnitor and the Indemnitee still cannot agree on an amount related to the Indemnification Claim, fails reasonably to contest either the Indemnitor and Indemnitee may submit the dispute concerning such Indemnification Claim for resolution as provided in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such ClaimSection 13.1 below; provided, however, that (i) nothing herein shall prevent the Indemnifying Party shall be permitted parties from seeking equitable or injunctive relief in a court of equity with respect to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationdispute.
(d) The Indemnifying Party Upon determination of the amount of an Indemnification Claim that is binding on both the Indemnitor and the Indemnitee, the Indemnitor shall make any pay the amount of such Indemnification Claim by wire transfer of immediately available funds, if such payment required to be made under this Article in cash and on demand. Any payments required to be paid is due from Seller, or by an Indemnifying Party under this Article that are not paid wire transfer of immediately available funds if such payment is due from Purchaser, within five business ten (10) days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeamount is determined.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either Promptly after receipt by a party asserts is an indemnifiable event pursuant entitled to Section 5.1 indemnification hereunder (the "INDEMNITEE") of written notice of the assertion or 5.2the commencement of any Proceeding by a third-party with respect to any matter referred to in SECTIONS 10.2 or 10.3, the Indemnitee shall give written notice thereof to the party seeking indemnification obligated to indemnify Indemnitee (the “Indemnitee”) "INDEMNITOR"), which notice shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be include a condition precedent to any Liability description of the Indemnifying Party hereunderProceeding, the amount thereof (if known and quantifiable) and the basis for the Proceeding, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; PROVIDED, that failure of the Indemnitee to provide prompt give the Indemnitor notice as provided herein will shall not relieve the Indemnifying Party Indemnitor of its obligations hereunder but only if and except to the extent that such failure materially prejudices the Indemnifying Party hereunderIndemnitor is prejudiced thereby. In case A claim for indemnification for any such action matter not involving a third-party Proceeding may be asserted by notice to the party from whom indemnification is sought and shall be brought against any Indemnitee and it shall provide a Notice paid promptly after (i) the Indemnitor's receipt of Claim to such notice, or (ii) if the Indemnifying Party claim is disputed by the Indemnitor, after resolution of the commencement thereof, dispute by mutual agreement of the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel parties or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationotherwise; provided, however, that prior to the Escrow Termination Date, all Buyer claims for indemnification shall satisfy the requirements of SECTION 2.3 hereof and the Escrow Agreement and all Buyer Damages shall be paid from the Escrow Amount to the extent of the then-remaining balance thereof. Any Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee's claim for indemnification at such Indemnitor's expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by appointing a nationally recognized and reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; PROVIDED that the Indemnitee shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; PROVIDED that the fees and expenses of such separate counsel shall be borne by the Indemnitee (other than any fees and expenses of such separate counsel that are incurred between the date Indemnitee provides to the Indemnitor notice of the claim and the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnitor, and except that the Indemnitor shall pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee).
(b) The Indemnitor shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay the fees and expenses of counsel retained by the Indemnitee if (1) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (2) the claim seeks an injunction or equitable relief against the Indemnitee; (3) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; (4) the claim involves environmental matters in which case the Indemnitee shall have sole control and management authority over the resolution of such claim (including hiring legal counsel and environmental consultants, conducting environmental investigations and cleanups, negotiating with governmental agencies and third parties and defending or settling claims and actions); PROVIDED that the Indemnitee shall keep the Indemnitor apprised of any major developments relating to any environmental claim; (5) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim, or (6) the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both Buyer Damages or the Seller Damages, as the case may be, relating to the claim could exceed the maximum amount that such Indemnitee and could then be entitled to recover under the Indemnifying Party because such representation would be reasonably likely to result in a conflict applicable provisions of interest, then ARTICLE 10. If the Indemnitee Indemnitor shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in control the defense of any such claim or litigationclaim, shall, except with the Indemnitor shall obtain the prior written consent of each Indemnitee, consent to entry of any judgment or enter the Indemnitee before entering into any settlement that of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not include as an unconditional term thereof the expressly and unconditionally release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee liabilities and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation obligations with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partywithout prejudice.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either The obligations and liabilities of the Seller with respect to any Buyer's Damages and the obligations and liabilities of the Buyer with respect to any Seller's Damages shall be subject to the following terms and conditions, with the indemnified party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2designated as the "Indemnitee", the party seeking with the indemnification (obligations designated as the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder"Indemnitor", and the failure to provide prompt Buyer's Damages or Seller's Damages, as the case may be, designated as the "Indemnified Claim" for the purposes of this Section 9.4:
(i) As soon as reasonably practicable after Indemnitee receives written notice as provided herein will relieve of any basis for an Indemnified Claim, Indemnitee shall give the Indemnifying Party Indemnitor written notice of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action Indemnified Claim, which notice shall be brought against any Indemnitee state the facts giving rise to an alleged basis for the Indemnified Claim and it shall provide a Notice of Claim to the Indemnifying Party an approximation of the commencement thereof, the Indemnifying Party shall be entitled to participate therein andamount of liability under such Indemnified Claim, to the extent that it shall wishknown to Indemnitee, and copies of any notice, summons, complaint or other documentation thereof or with respect thereto (the "Indemnification Notice").
(ii) In the event any action, suit or proceeding is brought against the Indemnitee with respect to assume an Indemnified Claim, the defense thereofaction, with counsel reasonably satisfactory to such Indemnitee andsuit or proceeding shall, after at the Indemnitor's written election made within fifteen (15) days of the Indemnitor's receipt of written notice from of the Indemnifying Party to such Indemnitee commencement of such action, suit or proceeding, be defended by the Indemnitor (including all proceedings on appeal or review in connection therewith) at the Indemnitor's expense and liability. Pending the Indemnitor's election so hereunder, Indemnitee shall have the right to assume employ its own counsel to file a request for an extension of time to file an answer, or to file an answer if the defense thereof, the Indemnifying Party shall not be liable Indemnitor fails to have its counsel file an answer within three (3) days prior to the expiration of the period within which an answer must be filed, as such period may be extended, without waiving any of Indemnitee's rights under Article IX. The Indemnitee hereunder shall have the right to employ its own counsel, for any legal the duration of such action, suit or proceeding, but the fees and expenses of other such counsel or any other expenses, in each case subsequently incurred by shall be at the Indemnitee, in connection with the defense thereof other than reasonable costs expense of investigation; provided, however, that if the Indemnitee reasonably believes that unless the Indemnitor has not elected within the required time period to defend any such action, suit or proceeding, or unless the actions or inactions of counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be retained by Indemnitor appear reasonably likely to result in a conflict judgment against Indemnitee because of interest, then a failure to defend the Indemnitee shall have action in a reasonably prudent manner (the right burden to defend, at the sole cost and expense prove same by a preponderance of the Indemnifying Partyevidence to rest with Indemnitee), in which event the Indemnitor shall pay such action by all appropriate proceedingscounsel fees and expenses. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense be kept fully informed of such asserted liability. No Indemnifying Partyaction, in suit or proceeding at all stages, whether or not it is so represented.
(iii) If Indemnitor does not assume the defense of any such claim or litigation, shall, except Indemnified Claim in accordance with the written consent of each Indemniteeterms hereof, consent to entry of any judgment Indemnitee may defend against such Indemnified Claim in such manner as it may deem appropriate or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim may settle or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to pay such claim, or the amount thereof, by written after giving notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determinedsame to Indemnitor, on such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the terms as Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemniteemay deem appropriate. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to Indemnitor does assume the defense of such any Indemnified Claim orand, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemniteefor whatever reason (including, without waiving its right limitation, Indemnitor's failure to indemnificationpay any judgment, may assumesettlement or attorney's fees with respect thereto) Indemnitor fails to resolve or settle such matter, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be or if Indemnitee is permitted to join in the defense and settlement of such Claim and to employ counsel at retain its own counsel with respect to any Indemnified Claim at Indemnitor's expense, Indemnitee may pay such amounts which Indemnitee may deem appropriate after giving notice of same to Indemnitor. In the event of any such payments by Indemnitee pursuant to this Section 9.4, Indemnitor shall reimburse Indemnitee for the amounts actually so paid by Indemnitee within ten (ii10) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationdays after Indemnitee's demand therefor.
(div) The Indemnifying Party shall make In the event the Indemnitor fails to pay to Indemnitee any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which Indemnitor's obligations to Indemnitee pursuant to this Section 9.4, when such obligation becomes final payments are due, the amounts of such payments shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, accrue interest at the rate of 10% per annum, not annum equal to exceed one percent (1%) above the maximum nonusurious rate allowed so-called variable Prime Rate per annum announced from time to time by applicable Law, The Wall Street Journal (the "Prime Rate") from the due date such payment becomes delinquent hereunder (i.e., with respect to amounts actually paid by Indemnitee) through and including the date of such payment of such delinquent sums, which interest by the Indemnitor. The Indemnitor shall be considered liable to be Losses of the IndemniteeIndemnitee for all reasonable attorneys' fees and expenses incurred by Indemnitee to enforce its rights and remedies under this Section 9.4.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either Promptly after receipt by a party asserts is an indemnifiable event pursuant entitled to Section 5.1 or 5.2, the party seeking indemnification hereunder (the “Indemnitee”) of written notice of the assertion or the commencement of any Action by a third-party (“Third Party Claim”) with respect to any matter referred to in Sections 10.2 or 10.3, the Indemnitee shall promptly provide give written notice thereof (the “Notice of ClaimClaim Notice”) to the other party or parties obligated to provide indemnification indemnify Indemnitee (the “Indemnifying PartyIndemnitor”). Providing , and thereafter shall keep the Notice of Claim shall be a condition precedent to any Liability Indemnitor reasonably informed with respect thereto; provided, however, that failure of the Indemnifying Party hereunder, and Indemnitee to give the failure to provide prompt Indemnitor notice as provided herein will shall not relieve the Indemnifying Party Indemnitor of its obligations hereunder but only if and except to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case Indemnitor is prejudiced thereby.
(b) With respect to claims for indemnification for any such action matter referred to in Section 10.2(a) other than claims arising out of or related to a Fundamental Representation, the Buyer shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofentitled, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wishbut not obligated, to assume and control the defense thereof, (with counsel reasonably satisfactory acceptable to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee Buyer) of such election Third Party Claim at its expense if it gives notice of its intention to do so to assume Seller within thirty (30) calendar days of the defense thereof, receipt of the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred Claim Notice by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationSeller; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be there exists or is reasonably likely to result in exist a conflict of interestinterest that would make it inappropriate in the reasonable judgment of Seller for the same counsel to represent both Buyer and Seller, then Seller shall be entitled to retain its own counsel, reasonably acceptable to Buyer, at the Indemnitee shall have expense of Seller. In the event Buyer exercises the right to defend, at the sole cost and expense of the Indemnifying Party, undertake any such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any eventThird Party Claim as provided above, the Indemnitee Seller shall have the right cooperate with Buyer in such defense and make available to participate at its own expense Buyer all witnesses, pertinent records, materials and information in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim Seller’s possession or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include under Seller’s control relating thereto as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages is reasonably required by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartyBuyer.
(c) If the Indemnifying Party fails With respect to claims for indemnification for any matter referred to in Sections 10.2(b) or 10.2(c) or arising out of or related to a Fundamental Representation, Seller shall be entitled, but not obligated, to assume and control the defense (with counsel reasonably acceptable to Buyer) of such Third Party Claim at its expense if it gives notice of its intention to do so to Buyer within thirty (30) calendar days of the receipt of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such ClaimNotice by Seller; provided, however, that (ia) Buyer may participate (at its own expense) in the Indemnifying Third Party Claim, and provide reasonable advice on the litigation strategy which Seller shall incorporate into its litigation strategy if it would be reasonable or advantageous to do so and (b) Buyer shall receive copies of all pleadings and settlement papers, and shall be permitted to join in the defense attend all court proceedings and depositions and all litigation strategy and settlement meetings; and provided, further, that Buyer (instead of Seller) shall be entitled, but not obligated, to assume and control such defense of such Third Party Claim (and, for the avoidance of doubt, Buyer’s reasonable costs and expenses (including reasonable attorney’s fees and expenses) of conducting such defense shall be included as indemnifiable Buyer Losses) if:
(i) Seller is not using commercially reasonable and diligent efforts to employ counsel at its own expensedefend such Third Party Claim, or Seller is not achieving reasonable success on the procedural matters and the merits of such Third Party Claim, or Seller is not in compliance with the preceding portion of this sentence above;
(ii) the Indemnifying Party shall cooperate with the Indemnitee there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the defense reasonable judgment of Buyer for the same counsel to represent both Buyer and settlement of such Claim in any manner reasonably requested by the Indemnitee and Seller;
(iii) the Indemnitee shall not settle such Third Party Claim without soliciting the views seeks, (x) an amount of damages that is, or would reasonably be expected to be, in excess of the Indemnifying Escrow Amount or (y) in addition to or in lieu of monetary damages, any injunctive or other equitable relief;
(iv) the Third Party Claim relates to or arises in connection with any criminal Action, indictment or allegation; or
(v) Seller fails to provide reasonable assurance to Buyer of Seller’s financial capacity to prosecute the defense of such Third Party Claim. In the event Seller is, directly or indirectly, conducting the defense against any such Third Party Claim, Buyer shall cooperate with Seller in such defense and giving them due considerationmake available to Seller all such witnesses, pertinent records, materials and information in Buyer’s possession or under Buyer’s control relating thereto as is reasonably required by Seller.
(d) The Indemnifying Neither Buyer nor Seller shall settle or compromise any Third Party Claim or consent to the entry of any judgment (i) unless Seller or Buyer, as the case may be, is given an unconditional written release by the claimant or plaintiff from all liability in respect of such Third Party Claim or (ii) without the prior written consent of Seller or Buyer, as the case may be, which consent shall make not be unreasonably withheld, conditioned or delayed. No Third Party Claim which is being defended in good faith by Buyer or Seller, as applicable, in accordance with the terms of this Agreement shall be settled by Buyer or Seller, as applicable, without the prior written consent of Seller or Buyer, as applicable, which consent shall not be unreasonably withheld, conditioned or delayed. A claim for indemnification for any payment required matter not involving a Third Party Claim may be asserted by notice to be made under this Article in cash the party from whom indemnification is sought and on demand. Any payments required to shall be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which promptly after such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteenotice.
Appears in 1 contract
Sources: Stock Purchase Agreement (DealerTrack Holdings, Inc.)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant Subject to applicable Laws, whenever a Claim shall arise for indemnification under Section 5.1 or 5.28.01, the party seeking Person entitled to indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice (notify in writing the “Notice of Claim”) to the other party or parties obligated to provide Party from which indemnification is sought (the “Indemnifying Party”). Providing ) of such Claim and, when known, the Notice facts constituting the basis of such Claim; provided, however, that in the event of a Claim for indemnification resulting from or in connection with a Claim by a third party, the Indemnified Party shall be a condition precedent give such written notice thereof to any Liability of the Indemnifying Party hereundernot later than ten (10) Business Days prior to the time any response to the third party Claim is required, if possible, and the in any event within fifteen (15) Business Days following receipt of notice thereof (provided, that failure to provide prompt notice as provided herein will timely notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only if and any liability it may have to the Indemnified Party, except to the extent that such failure materially prejudices the Indemnifying Party hereunderhas been actually prejudiced by such failure). In case Following receipt of notice of any such action third party Claim, and unless counsel to the Indemnified Party shall be brought against any Indemnitee and it shall provide a Notice have reasonably determined in good faith that the assumption of Claim to such defense by the Indemnifying Party would be inappropriate due to a conflict of the commencement thereofinterest, the Indemnifying Party shall be entitled to participate therein andhave the option, to the extent that it shall wishat its cost and expense, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so matter and to assume retain counsel (not reasonably objected to by the defense thereofIndemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party shall not be liable to the Indemnitee hereunder Indemnified Party for any legal expenses fees of other counsel or any other expenses, in each case subsequently incurred by expenses (except as expressly provided to the Indemnitee, in connection contrary herein) with respect to the defense thereof of such Claim, other than reasonable costs fees and expenses of investigation; provided, however, that if counsel employed by the Indemnitee reasonably believes that counsel Indemnified Party for any period during which the Indemnifying Party canhas not represent both assumed the Indemnitee and the Indemnifying defense thereof. The Indemnified Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnifying Indemnified Party) with its own counsel and counsel for each Party shall, to the extent consistent with such action by all appropriate proceedings. The Indemnitee agrees to reasonably counsel’s professional responsibilities, cooperate with the Indemnifying other Party and its any counsel in the defense against any such asserted liabilitydesignated by that Party. In any eventeffecting the settlement or compromise of, or consenting to the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into with respect to, any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present atClaim, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereofIndemnified Party, by written notice to as the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Losscase may be, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim act in good faith, shall consult with the Indemniteeother Party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other Party shall consent, without waiving its right such consent not to indemnificationbe unreasonably withheld, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the conditioned or delayed. An Indemnifying Party shall not be permitted to join liable for any settlement, compromise or judgment not made in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate accordance with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationpreceding sentence.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
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Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification Each Indemnified Party shall promptly give notice hereunder (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”"Claim Notice") to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wishapplicable, to assume in accordance with the defense thereof, with counsel reasonably satisfactory to such Indemnitee andEscrow Agreement, after notice becoming aware of any claim as to which recovery may be sought against the indemnifying Party because of the indemnity provided in this Article 10 or otherwise in this Agreement. The Indemnified Party shall provide the indemnifying Party with full and unrestricted access to all books and records relating to the claim, and to all employees or other persons who are knowledgeable about such claim, in order to allow the indemnifying Party to audit the status of such claim and the payments that have been or will be, made with respect thereto. After receiving such Claim Notice, the indemnifying Party shall have thirty (30) days from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense delivery of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees Claim Notice to reasonably cooperate with notify the Indemnifying Indemnified Party and its counsel in that the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in indemnifying Party will assume the defense of any such claim or any litigation resulting from such claim; provided that if the period of time to respond, answer, defend or otherwise plead to any claim or other item is less than such thirty (30) day period, the Indemnified Party shall give prior notice to the indemnifying Party, who shall have the right to so respond, defend, answer or otherwise plead by giving timely notice to the Indemnified Party and if the indemnifying Party fails to give such timely notice to the Indemnified Party, the Indemnified Party, acting reasonably shall have the right to so respond, defend, answer or otherwise plead to such claim. If the indemnifying Party assumes the defense of the claim or litigation at issue, the Indemnified Party shall have the right to employ separate counsel in such claim or litigation and to participate in the defense or conduct thereof, but the fees and expenses of such counsel shall not be at the expense of the indemnifying Party unless (i) the indemnifying party shall have failed, within the time limits set forth in the preceding sentence, to assume the defense of such claim or litigation, shall(ii) the employment of such counsel has been specifically authorized in writing by the indemnifying Party, except (iii) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the indemnifying Party and such Indemnified Party and indemnifying Party shall have determined that there are material conflicting interests between the indemnifying Party and the Indemnified Party in the legal defense thereof and, in such event, each of legal counsel selected by the indemnifying Party and the Indemnified Party shall be required to cooperate fully with each other, (iv) the written consent relief sought exceeds the indemnifying Party's maximum indemnification obligations under Article 10 hereof, or (v) equitable relief is being sought against any Indemnified Party. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of each Indemniteean Indemnified Party to give such Claim Notice (or by delay by an Indemnified Party in giving such Claim 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 Claim Notice. The Claim Notice required hereunder shall specify the basis for the claim for indemnification to the extent ascertainable at the time of the Claim Notice. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall include an estimate of the amount of the claim in the Claim Notice to be provided pursuant to this Section 10.6(a), accompanied by a statement therein that the claim has not yet been liquidated (an "Unliquidated Claim"). In the event that an Indemnified Party gives a Claim Notice for an Unliquidated Claim relating to or arising from the breach of a representation or warranty prior to the termination of the survival period of a representation or warranty set forth in this Section 10, such survival period shall be tolled with respect to such Unliquidated Claim until it becomes finally resolved pursuant to the provisions of this Article 10. If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice within thirty (30) days after the matter giving rise to the claim becomes finally resolved, and such second Claim Notice shall specify the amount of the claim.
(b) Failure by the indemnifying Party to notify the Indemnified Party of its election to defend any such claim or litigation by a third party within thirty (30) days from the delivery of the Claim Notice to the indemnifying Party shall be deemed a waiver by the indemnifying Party of its right to defend such claim or litigation. If the indemnifying Party shall not assume the defense of any such claim by a third party or litigation resulting therefrom, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, acting reasonably, and may settle such claim of litigation on such terms as it may deem appropriate, acting reasonably, without prejudicing its rights against the indemnifying Party provided for herein. The parties and their respective counsel shall provide reasonable cooperation and information in connection with any claim or litigation as to which indemnification is sought.
(c) The indemnifying Party shall not, in the defense of such claim or any Action resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) or enter into any settlement that settlement, except with the written consent, which consent shall not be unreasonably withheld, 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 a release of the Indemnitee from all Liability liability in respect to of such claim or litigation Action or that does not solely require which would in any way restrict or impair the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent business of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of ClaimBuyers, the Indemnifying Party shall have 20 calendar days (Company, any Subsidiary or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice any Affiliate of Claim is submitted to the Indemnifying Party the amount any of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationforegoing.
(d) The Indemnifying If an indemnifying Party does not, within thirty (30) days after its receipt of the Claim Notice required by Section 10.6(a) hereof or in accordance with the Escrow Agreement or, in the case of an Unliquidated Claim, within thirty (30) days after its receipt of the second Claim Notice described in Section 10.6(a), advise the Indemnified Party that the indemnifying Party denies the right of the Indemnified Party to indemnity in respect of the claim, then the amount of such claim shall make any payment required be deemed to be finally determined between the Parties hereto. If the indemnifying Party notifies the Indemnified Party that it disputes any claim made under by the Indemnified Party, then the Parties hereto shall endeavor to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by appropriate arbitration in accordance with the terms of this Article in cash Agreement, and on demandany Liability established by reason of such settlement, compromise or litigation shall be deemed to be finally determined. Any payments required to claim that is finally determined in the manner set forth above shall be paid promptly by an Indemnifying the indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteein cash.
Appears in 1 contract
Sources: Stock Purchase Agreement (Phoenix International Life Sciences Inc)
Procedures for Indemnification. (a) If there occurs an In the event that either any claim is ------------------------------ asserted against any party asserts hereto, or any party hereto is made a party defendant in any action or proceeding, and such claim, action or proceeding involves a matter which is the subject of this indemnification, then such indemnified party (an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”"Indemnified Party") shall promptly provide give written prompt notice (the “Notice of Claim”) thereof to the other indemnifying party or parties obligated to provide indemnification (the “an "Indemnifying Party”). Providing ") of such claim, action or proceeding (although the Notice of Claim failure to give such notice shall be a condition precedent not limit an Indemnified Party's right to any Liability of indemnification unless the Indemnifying Party hereunderis prejudiced in defending such claim by such lack of notice), and the failure to provide prompt notice as provided herein will relieve the such Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defendjoin in the defense of said claim, action or proceeding at the sole such Indemnifying Party's own cost and expense and, if the Indemnifying Party agrees in writing to be bound by and to promptly pay the full amount of any final judgment from which no further appeal may be taken and if the Indemnified Party is reasonably assured of the Indemnifying Party's ability to satisfy such agreement, then at the option of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in may take over the defense against any of such asserted liability. In any eventclaim, action or proceeding, except that, in such case, the Indemnitee Indemnified Party shall have the right to participate at its own expense join in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such said claim, action or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”)proceeding at its own cost and expense; provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, -------- ------- that the Indemnifying Party believes is due shall not settle or compromise any claim, action or proceeding without the Indemniteeprior written consent of the Indemnified Party which will not be unreasonably withheld or delayed; and provided, and any undisputed amount further, that no consent -------- ------- shall be promptly paid over to necessary if the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Indemnified Party shall be permitted to join unconditionally released and completely reimbursed for all Losses in the defense and settlement respect of such Claim and claim. No claim will be subject to employ counsel at its own expense, (ii) indemnification which is not asserted prior to the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views expiration of the Indemnifying Party Survival Period (as defined in Section 8.4 hereof). Subject to Section 9.17 hereof, after the Effective Date, Chopra and giving them due consideration.
(d) The Indemnifying Party Swadesh Chopra ar▇ ▇▇▇▇▇▇ ▇▇- ▇ointed and shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of act as agents for the date on which such obligation becomes final shall thereafter be deemed delinquent, Corporation and the Indemnifying Party shall pay Stockholders for purposes of responding to indemnification claims by CPI and coordinating the Indemniteelegal defense thereof if, immediately upon demand, interest at the rate of 10% per annum, not in Chopra's or Swadesh Chopra's ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇esirable and appropriate to exceed the maximum nonusurious rate allowed by applicable Law, from the date assume such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteedefense.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs a claim for Damages (an event that either “Indemnity Claim”), other than Third-Party Claims under Section 8.5(b) below, is to be made by a Person entitled to indemnification under this Article 8 (an “Indemnified Party”), such party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2shall give written notice briefly describing the claim and the total monetary damages sought (each, the party seeking indemnification (the a “Indemnitee”) shall promptly provide notice (the “Notice of ClaimNotice”) to the other party Sellers’ Representative or parties obligated to provide indemnification Buyer, as applicable (the each an “Indemnifying Party”)) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which gives rise to Damages for which indemnification may be sought under this Article 8. Providing the Notice Any failure to submit any such notice of Claim shall be a condition precedent claim to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will shall not relieve the any Indemnifying Party of its obligations hereunder but only if and any liability hereunder, except to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to demonstrates that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be deemed to have accepted the Notice and the Indemnifying Party shall be deemed to have agreed to pay the Damages at issue if the Indemnifying Party does not send a notice of disagreement to the commencement thereofIndemnified Party within thirty (30) calendar days after receiving the Notice. If the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice, the Indemnifying Party shall promptly pay to the Indemnified Party the amount sufficient to pay the Damages. For the avoidance of doubt, Buyer shall only be required to send notices to and obtain the approval of the Seller’s Representative with respect to this Section 8.5.
(b) If an Indemnity Claim is to be made by an Indemnified Party entitled to participate therein andindemnification hereunder in respect of, arising out of or involving a claim made by any third party (each, a “Third-Party Claim”) against the Indemnified Party, the Indemnified Party shall give a Notice to the Indemnifying Party as soon as practicable after becoming aware of such Third-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. After such Notice, if the Indemnifying Party acknowledges in writing to an Indemnified Party that the Indemnifying Party is liable and has indemnity obligations for any Damages resulting from any such Indemnitee of such election so to assume the defense thereofThird-Party Claim, then the Indemnifying Party shall not be liable entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Third-Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnitee hereunder for Indemnified Party) to handle and defend the same, unless the named parties to such action or proceeding include the Indemnified Party and the Indemnifying Party, and any such Indemnified Party has been advised in writing by counsel that there may be one or more legal expenses of other counsel defenses available to such Indemnified Party that are different from or any other expensesadditional to those available to the Indemnifying Party, in each case subsequently incurred by which event such Indemnified Party shall be entitled, at the IndemniteeIndemnifying Parties’ cost, in connection risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld, provided that any such compromise or settlement shall provide for the absolute and unconditional release of the Indemnified Parties from any Liability with respect to such Third-Party Claim. If the Indemnifying Party assumes the defense thereof other than of a Third-Party Claim (to the extent permitted above), the Indemnified Party shall cooperate in all reasonable costs respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of investigationsuch Third-Party Claim and any appeal arising therefrom; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Indemnified Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interestmay, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense cost, participate in the investigation, trial and defense of such asserted liability. No Indemnifying Party, in the defense of lawsuit or action and any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Personappeal arising therefrom. The Indemnifying Party agrees Parties shall cooperate with each other in any notifications to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Personsinsurers. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim orclaim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense), having assumed the defense Indemnified Party against which such claim has been asserted will have the right to undertake, at the Indemnifying Parties’ cost, risk and expense, the defense, compromise or settlement of such Claim, fails reasonably to contest such Third-Party Claim in good faith, on behalf of and for the Indemnitee, without waiving its right to indemnification, may assume, at the cost account and risk of the Indemnifying Party, the defense and settlement of such ClaimParties; provided, however, that (i) such claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement; provided, however, that the Indemnifying Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The Indemnifying Party shall be permitted to join in the defense and liable for any settlement of such any Third-Party Claim effected pursuant to and in accordance with this Section 8.5 and for any final judgment (subject to employ counsel at its own expenseany right of appeal), (ii) the and each Indemnifying Party shall cooperate with agrees to indemnify and hold harmless the Indemnitee in the defense Indemnified Party from and settlement against any Damages by reason of such Claim settlement or judgment subject to the limitations provided in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee8.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Primoris Services CORP)
Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise for indemnification under Section 12.1 above, with the exception of claims for litigation expenses in respect of a litigation as to which a notice of claim, as provided below in this Section 12.2, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2ongoing basis, the party seeking entitled to indemnification (the “Indemnitee”"Indemnified Party") shall promptly provide notice notify the party from whom indemnification is sought (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”). Providing ") of such claim and, when known, the Notice facts constituting the basis for such claim; provided, however, that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall be a condition precedent give such notice thereof to any Liability of the Indemnifying Party hereundernot later than 10 business days prior to the time any response to the asserted claim is required, if possible, and in any event within 5 business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to provide prompt notice as provided herein will so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only from any liability for indemnification it may have if and to the extent that such failure materially prejudices the Indemnifying Party hereundershall not have been prejudiced by such omission. In case the event of any such action shall be brought against any Indemnitee and it shall provide claim for indemnification resulting from or in connection with a Notice of Claim to claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof; provided, however, that the Indemnifying Party shall first have agreed in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses attributable to such claim or Legal Proceeding; and, provided, further, that FMS shall not be entitled to assume the commencement thereofdefense of any claim or Legal Proceeding against Newco or Baseline for Taxes with respect to a period ending after the Closing Date. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein andselect counsel and take all steps necessary in the defense thereof; provided, however, that no settlement shall be made without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the extent proposed amount of such settlement); provided, further, that it the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall wishnot compromise or settle such claim without the prior written consent of the Indemnifying Party, to which consent shall not be unreasonably withheld. If the Indemnifying Party does not assume the defense thereofof any such claim or Legal Proceeding in accordance with the terms hereof, with counsel reasonably satisfactory to such Indemnitee the Indemnified Party may defend (and, in the case of any claim or Legal Proceeding against Newco or Baseline for Taxes with respect to a period ending after the Closing Date, shall defend) against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice from of the same to the Indemnifying Party to and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld) on such Indemnitee of such election so to assume terms as the defense thereofIndemnified Party may deem appropriate, and the Indemnifying Party shall not be liable to will promptly indemnify the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, Indemnified Party in each case subsequently incurred by the Indemnitee, in connection accordance with the defense thereof other than reasonable costs provisions of investigationthis Section 12.2; provided, however, that if the Indemnitee reasonably believes that counsel for Indemnified Party does not obtain the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the prior written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claimany such settlement, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes such written consent is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted not unreasonably withheld by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of Indemnified Party shall not be entitled to indemnification hereunder from such Claim; providedIndemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 12.2 to the contrary, howeverif, that in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 12.2, (i) the Indemnifying Party shall be permitted not have promptly employed counsel reasonably satisfactory to join in the defense and settlement of such Claim and to employ counsel at its own expense, Indemnified Party or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall cooperate with not have the Indemnitee in right to direct the defense and settlement of any such Claim in any manner reasonably requested action on behalf of the Indemnified Party. All payments by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required pursuant to be made under this Article XII shall be in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, in immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeavailable funds.
Appears in 1 contract
Sources: Transfer and Shareholders Agreement (Hollywood Media Corp)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by the Indemnitee by delivery of a condition precedent written declaration to any Liability of the Indemnifying Party hereunder, Indemnitor requesting indemnification and specifying the basis on which indemnification is sought and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party amount of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein asserted Losses and, to in the extent that it shall wishcase of a Third Party Claim, to assume the defense thereof, with counsel reasonably satisfactory to containing (by attachment or otherwise) such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then information as the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, concerning such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Third Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeClaim.
(b) Upon receipt of If the Indemnification Claim involves a Notice of Third Party Claim, the Indemnifying Party procedures set forth in Section 9.3 hereof shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered observed by the Indemnitee to and the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartyIndemnitor.
(c) If the Indemnifying Indemnification Claim involves a matter other than a Third Party fails Claim, the Indemnitor shall have thirty (30) Business Days to assume the defense object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim orby the Indemnitor and the Indemnification Claim shall be paid in accordance with Section 9.2(d) hereof. If an objection is timely interposed by the Indemnitor, having assumed then the defense Indemnitee and settlement the Indemnitor shall negotiate in good faith for a period of thirty (30) Business Days from the date (such period is hereinafter referred to as the “Negotiation Period”) the Indemnitee receives such objection. After the Negotiation Period, if the Indemnitor and the Indemnitee still cannot agree on an Indemnification Claim, fails reasonably to contest either the Indemnitor or Indemnitee may submit the dispute concerning such Indemnification Claim for resolution as provided in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such ClaimSection 10.6 below; provided, however, that (i) nothing herein shall prevent the Indemnifying Party shall be permitted parties from seeking equitable or injunctive relief in a court of equity with respect to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationdispute.
(d) The Indemnifying Party Upon determination of the amount of an Indemnification Claim that is binding on both the Indemnitor and the Indemnitee, the Indemnitor shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid pay the amount of such Indemnification Claim from the Escrow Amount or, if the Escrow Amount has been released or otherwise exhausted, by an Indemnifying Party under this Article that are not paid wire transfer of immediately available funds within five business ten (10) days of the date on which such obligation becomes final shall thereafter be deemed delinquentamount is determined.
(e) Unless earlier exhausted, and any funds remaining in the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest Escrow Amount shall be considered released and paid to be Losses Fund II by wire transfer of immediately available funds promptly after the second anniversary of the IndemniteeClosing Date.
Appears in 1 contract
Sources: Equity Purchase Agreement (Consolidated Resources Health Care Fund Ii)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Whenever a claim shall arise for indemnification under Section 5.1 or 5.211.1 above, the party seeking entitled to indemnification (the “Indemnitee”"Indemnified Party") shall promptly provide notice notify the party from whom indemnification is sought (the “Notice "Indemnifying Party") of Claim”) such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the other party or parties obligated to provide indemnification (the “Indemnifying Party”), as soon as possible, but in no event later than 10 business days prior to the time any response to the asserted claim is required, if possible, and in any event within 3 business days following receipt of notice thereof. Providing The Indemnifying Party shall not be liable for any legal fees incurred by the Notice Indemnified Party prior to the Indemnifying Party's receipt of Claim shall be a condition precedent such notice. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Liability of Indemnified Party to so notify the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will shall not relieve the Indemnifying Party of its obligations hereunder but only from any liability for indemnification it may have if and to the extent that such failure materially prejudices the Indemnifying Party hereundershall not have been prejudiced by such omission. In case the event of any such action shall be brought against any Indemnitee and it shall provide claim for indemnification resulting from or in connection with a Notice of Claim to claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof (and Seller shall assume the defense of any claim for unpaid taxes for any period prior to the commencement thereofClosing and Buyer shall assume the defense of any claim for unpaid taxes for any period after the Closing); provided, however, that the Indemnifying Party shall first have agreed in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses, if any, attributable to such claim or Legal Proceeding. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein andselect counsel and take all steps necessary in the defense thereof; provided, however, that no settlement shall be made without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the extent proposed amount of such settlement, plus reasonable attorneys' fees); provided, further, that it the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall wishnot compromise or settle such claim without the prior written consent of the Indemnifying Party, to which consent shall not be unreasonably withheld. If the Indemnifying Party does not assume the defense thereofof any such claim or Legal Proceeding in accordance with the terms hereof, with counsel reasonably satisfactory the Indemnified Party may defend against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice of the same to such Indemnitee and, after notice from the Indemnifying Party to and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld) on such Indemnitee of such election so to assume terms as the defense thereofIndemnified Party may deem appropriate, and the Indemnifying Party shall not be liable to will promptly indemnify the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, Indemnified Party in each case subsequently incurred by the Indemnitee, in connection accordance with the defense thereof other than reasonable costs provisions of investigationthis Section 11.2; provided, however, that if the Indemnitee reasonably believes that counsel for Indemnified Party does not obtain the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the prior written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claimany such settlement, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes such written consent is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted not unreasonably withheld by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of Indemnified Party shall not be entitled to indemnification hereunder from such Claim; providedIndemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 11.2 to the contrary, howeverif, that in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 11.2, (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ not have promptly employed counsel at its own expense, or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of outside legal counsel to each of the Indemnifying Party and the Indemnified Party, that a conflict of interest gives rise to one or more legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice (reasonably satisfactory to the Indemnifying Party), the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) and (y) the Indemnifying Party shall cooperate with not have the Indemnitee in right to direct the defense and settlement of any such Claim in any manner reasonably requested action on behalf of the Indemnified Party. All payments by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required pursuant to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest XI shall be considered to be Losses of the Indemniteein immediately available funds.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either Promptly after receipt by a party asserts is an indemnifiable event pursuant entitled to Section 5.1 indemnification under Section 8.01 or 5.2, the party seeking indemnification Section 8.02 (the “Indemnitee”) shall of written notice of the assertion or the commencement of any claim or Action (or, in the case of any Uncertain Pre-COD Adjustment Item pursuant to Section 8.01(a)(i), promptly provide upon, and in any event within ten (10) Business Days of such Uncertain Pre-COD Adjustment Items becoming quantifiable) with respect to any matter referred to in Section 8.01 or Section 8.02, the Indemnitee will give written notice describing such claim or Action in reasonable detail in light of the circumstances then known to the Indemnitee (including, in the case of an Uncertain Pre-COD Adjustment Item pursuant to Section 8.01(a)(i), the calculation of the Uncertain Pre-COD Adjustment Item) to the party obligated to indemnify Indemnitee (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying PartyIndemnitor”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and thereafter will keep the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, Indemnitor reasonably informed with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationrespect thereto; provided, however, that if failure of the Indemnitee to timely provide written notice of any claim or Action or to keep the Indemnitor reasonably believes informed as provided herein will not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor is prejudiced thereby. If any Action will be commenced against any Indemnitee by a third party, the Indemnitor will be entitled to participate in such Action and assume the defense thereof with counsel reasonably satisfactory to the Indemnitee, at the Indemnitor’s sole expense; provided, however, that the Indemnitor will not have the right to assume the defense of any Action if (i) in the reasonable opinion of the Indemnitee, counsel for the Indemnifying Party canIndemnitor could not adequately represent both the interests of the Indemnitee because such interests could be in conflict with those of the Indemnitor; (ii) such litigation involves potential criminal liability or could reasonably be expected to have a material adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the Indemnitor; or (iii) the Indemnitor will not have assumed the defense of the litigation in a timely fashion (but in any event within thirty (30) days of notice of such Action). If the Indemnitor will assume the defense of any Action, the Indemnitee will be entitled to participate in any Action at its expense, and the Indemnifying Party because Indemnitor will not settle such representation would Action unless the settlement will include as an unconditional term thereof the giving by the claimant or the plaintiff of a full and unconditional release of the Indemnitee, from all liability with respect to the matters that are subject to such Action and does not (A) include any sanction or restriction on the conduct of business by the Indemnitee or its Affiliates or (B) have any material adverse Tax consequences with respect to the Indemnitee or its Affiliates, otherwise will have been approved by the Indemnitee, such approval not to be reasonably likely to result in a conflict unreasonably withheld, conditioned or delayed. If the Indemnitor does not assume defense of interestany Action, then the Indemnitee shall have the right to defend, at the sole and be reimbursed for its reasonable cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any eventregard to, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying PartyAction, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of counsel selected by the Indemnitee from all Liability in respect (who shall be reasonably satisfactory to such claim or litigation or that does not solely require the payment Indemnitor). To the extent the provisions of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present atthis Section 8.03 are inconsistent with Section 5.12(e), and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event Section 5.12(e) shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation control with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, matters that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was are the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partyinconsistency.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Eversource Energy)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by an Indemnitee against the Indemnitor by delivery of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt written notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices Indemnitor requesting indemnification and specifying the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein basis on which indemnification is sought and, to in the extent that it shall wishcase of a Third Party Claim, to assume the defense thereof, with counsel reasonably satisfactory to containing (by attachment or otherwise) such Indemnitee and, after notice from the Indemnifying Party to other information as such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, concerning such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Third Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeClaim.
(b) Upon receipt of If the Indemnification Claim involves a Notice of Third Party Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss procedures set forth in the Notice of Claim, or subsequent Notice of Liability, Section 10.4 hereof shall be deemed established and accepted observed by the Indemnifying Party------------ Indemnitee and the Indemnitor.
(c) If the Indemnifying Indemnification Claim involves a matter other than a Third Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost Indemnitor shall have thirty (30) days following receipt of the Indemnifying Partynotice of an Indemnification Claim to object to such Indemnification Claim by delivery of a written notice of objection to the Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim by the Indemnitor, and the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party Indemnification Claim shall be permitted to join paid in accordance with subsection (d) hereof. If any objection is timely interposed by the defense Indemnitor and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested dispute is not resolved by the Indemnitee and the Indemnitor within fifteen (iii15) days from the date the Indemnitee receives such objection, such dispute shall not settle such Claim without soliciting the views be resolved by arbitration as provided in Article 10.9 of the Indemnifying Party and giving them due considerationthis Agreement.
(d) Upon determination of the amount of an Indemnification Claim, whether by agreement between the Indemnitor and the Indemnitee or by an arbitration award or by any other final adjudication, the Indemnitor and WebMD shall cause the Escrow Agent to deliver to WebMD, and WebMD shall cancel and retire, that number of shares of WebMD Series D Common Stock as equals the amount of the Indemnification Claim divided by the Value Per Share. The Indemnifying Party shall make any payment required to be made obligations of indemnity under this Article in cash 10 shall be satisfied solely and on demand. Any payments required to be paid ---------- exclusively by an Indemnifying Party under this Article that are not paid within five business days means of delivery of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the IndemniteeSeries D Common Stock held in escrow.
Appears in 1 contract
Sources: Stock Purchase Agreement (Webmd Inc)
Procedures for Indemnification. (a) If there occurs an event that either The procedures for indemnification shall be as follows:
A. The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, claiming the party seeking indemnification (the “Indemnitee”"Claimant") shall promptly provide give notice to the party from whom indemnification is claimed (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”)") of any claim, whether between the parties or brought by a third party, specifying (i) the factual basis for such claim and (ii) the amount of the claim. Providing If the Notice of Claim claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
B. Following receipt of notice from the Claimant of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim, the Indemnifying Party shall be entitled have thirty (30) days to participate therein and, to make such investigation of the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such Indemnitee of such election so to assume the defense thereofnotice, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim. Buyer shall not be liable entitled to apply any of the Indemnitee hereunder for any legal expenses Accounts Receivable collected on behalf of other counsel or any other expenses, in each case subsequently incurred by Seller to a claim as to which Buyer may be entitled to indemnification hereunder. If the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee Claimant and the Indemnifying Party because such representation would be reasonably likely do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy.
C. With respect to result in any claim by a conflict of interestthird party as to which the Claimant is entitled to indemnification hereunder, then the Indemnitee Indemnifying Party shall have the right to defendright, at its own expense, to participate in or assume control of the sole cost defense of such claim, and expense of the Claimant shall cooperate fully with the Indemnifying Party, such action subject to reimbursement for reasonable actual out-of-pocket expenses incurred by all appropriate proceedingsthe Claimant as the result of a request by the Indemnifying Party. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in elects to assume control of the defense against of any such asserted liability. In any eventthird-party claim, the Indemnitee Claimant shall have the right to participate at its own expense in the defense of such asserted liabilityclaim at its own expense.
D. If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible. No E. f the Indemnifying Party, Party does not elect to assume control or otherwise participate in the defense of any such claim or litigationthird party claim, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages it shall be bound by the Indemnifying Person. The Indemnifying Party agrees to afford results obtained in good faith by the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation Claimant with respect to such claim, or the amount thereof, by written notice . F. The indemnification rights provided in Sections 10.2 and 10.3 hereof shall extend to the Indemnitee (the “Contest Notice”); providedshareholders, howeverdirectors, that ifofficers, at the time a Notice of Claim is submitted to the Indemnifying Party the amount partners employees and representatives of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect Claimant although for the purpose of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss procedures set forth in the Notice of Claimthis Section 10.4, or subsequent Notice of Liability, any indemnification claims by such parties shall be deemed established made by and accepted by through the Indemnifying PartyClaimant.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2Whenever a claim shall arise for indemnification under this Article XI, the party seeking entitled to indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice (notify the “Notice of Claim”) to the other party or parties obligated to provide from which indemnification is sought (the “Indemnifying Party”). Providing ) of such claim and, when known, the Notice facts constituting the basis for such claim; provided, however, that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall be a condition precedent give such notice thereof to any Liability of the Indemnifying Party hereundernot later than ten Business Days prior to the time any response to the asserted claim is required, if possible, and the in any event within five Business Days following receipt of notice thereof; provided, further, that no delay or failure to provide prompt give such notice as provided herein will by the Indemnified Party to the Indemnifying Party shall adversely affect any of the other rights or remedies which the Indemnified Party has under this Agreement, or alter or relieve the Indemnifying Party of its obligations hereunder but only if and obligation to indemnify the Indemnified Party, except to the extent that such delay or failure has materially prejudices prejudiced the Indemnifying Party. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party hereundermay, at its sole cost and expense, assume the defense thereof by written notice within 30 calendar days, using counsel that is reasonably satisfactory to the Indemnified Party; provided, however, that in the event of any claim for indemnification by a Purchaser Indemnified Party resulting from a claim or legal proceeding that is reasonably expected to have a continuing effect in any material respect on the Business or the Purchased Assets, the Indemnified Party shall have the right to control the defense thereof pursuant to the last sentence of this Section 11.4. In case If an Indemnifying Party assumes the defense of any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, take all steps necessary in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs including the settlement of investigationany case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the Indemnitee reasonably believes defense of any claim or Legal Proceeding by a third party as provided herein, shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such third party of the Indemnified Party), or consent to the entry of any judgment that counsel for does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article XI, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information. So long as the Indemnifying Party canis in good faith defending such claim or proceeding, the Indemnified Party shall not represent both compromise or settle such claim without the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingswhich consent shall not be unreasonably withheld, conditioned or delayed. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in does not assume the defense of any such claim or litigation, shall, except litigation in accordance with the written consent of each Indemniteeterms hereof, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to Indemnified Party may defend against such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Personsin such manner as it may deem appropriate, including any Governmental settling such claim or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the litigation (after giving prior written consent notice of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted same to the Indemnifying Party and obtaining the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further prior written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost consent of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee which consent shall not settle be unreasonably withheld, conditioned or delayed) on such Claim without soliciting terms as the views of the Indemnifying Indemnified Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentmay reasonably deem appropriate, and the Indemnifying Party shall pay to will promptly indemnify the Indemnitee, immediately upon demand, interest at Indemnified Party in accordance with the rate provisions of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteethis Section 11.4.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dana Corp)
Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise for indemnification under Section 11.1 above, with the exception of claims for litigation expenses in respect of a litigation as to which a notice of claim, as provided below in this Section 11.2, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2ongoing basis, the party seeking entitled to indemnification (the “Indemnitee”"INDEMNIFIED PARTY") shall promptly provide notice notify the party from whom indemnification is sought (the “Notice "INDEMNIFYING PARTY") of Claim”) such claim and, when known, the facts constituting the basis for such claim; PROVIDED, HOWEVER, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereundernot later than 10 business days prior to the time any response to the asserted claim is required, if possible, and in any event within 5 business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to provide prompt notice as provided herein will so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder but only from any liability for indemnification it may have if and to the extent that such failure materially prejudices the Indemnifying Party hereundershall not have been prejudiced by such omission. In case the event of any such action shall be brought against any Indemnitee and it shall provide claim for indemnification resulting from or in connection with a Notice of Claim to claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; PROVIDED, HOWEVER, that Seller shall not be entitled to assume the defense of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the commencement thereofClosing Date. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume select counsel and take all steps necessary in the defense thereof; PROVIDED, with counsel reasonably satisfactory HOWEVER, that no settlement shall be made without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to such Indemnitee and, after notice from any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such Indemnitee claim or proceeding in excess of the proposed amount of such election so to assume settlement); PROVIDED, FURTHER, that the defense Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof, . So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall not be liable to compromise or settle such claim without the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingswhich consent shall not be unreasonably withheld. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in does not assume the defense of any such claim or litigation, shall, except Legal Proceeding in accordance with the terms hereof, the Indemnified Party may defend (and, in the case of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Closing Date, shall defend) against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of each Indemniteethe Indemnifying Party, which consent to entry shall not be unreasonably withheld) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of any judgment or enter into any settlement this Section 11.2; PROVIDED, HOWEVER, that if the Indemnified Party does not include as an unconditional term thereof obtain the release prior written consent of the Indemnitee Indemnifying Party to any such settlement, and such written consent is not unreasonably withheld by the Indemnifying Party, the Indemnified Party shall not be entitled to indemnification hereunder from all Liability such Indemnifying Party with respect to the claim settled. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. Notwithstanding anything in this Section 11.2 to the contrary, if, in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 11.2, such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or litigation or that does not solely require the payment of money damages by proceeding) and (y) the Indemnifying Person. The Indemnifying Party agrees shall not have the right to afford direct the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including defense of any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent action on behalf of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeIndemnified Party.
(b) Upon receipt of a Notice of ClaimNotwithstanding anything to the contrary set forth in this Article XI, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation except with respect to such claim, any misrepresentation or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice breach of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss warranty set forth in the Notice of ClaimSection 3.12(d), Seller shall have no responsibility or obligation to indemnify Buyer or defend, or subsequent Notice hold Buyer harmless against any Losses, claims or Legal Proceedings arising out of LiabilitySeller's or Buyer's use, reuse, modification, compilation, collection, reproduction, public display or performance, or distribution of showtime data, radio programming data or musical event data. Should Seller choose to litigate or otherwise defend against a claim or Legal Proceeding relating to the foregoing in which Buyer is not a named party, in accordance with the provisions set forth in this Article XI, Seller shall be deemed established notify Buyer and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume Buyer may, at its sole expense and cost, participate in the defense of any such Claim orLegal Proceeding with the counsel of its choice. Should Buyer elect not to participate in any such Legal Proceeding, having assumed Seller shall have no responsibility to defend such issues and may compromise any such claims on terms favorable to Seller, in Seller's sole discretion, without regard to the defense and settlement outcome of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationissues.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by the Indemnitee by delivery of a condition precedent written declaration to any Liability of the Indemnifying Party hereunder, Indemnitor requesting indemnification and specifying the basis on which indemnification is sought and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party amount of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein asserted Damages and, to in the extent that it shall wishcase of a Third Party Claim, to assume the defense thereof, with counsel reasonably satisfactory to containing (by attachment or otherwise) such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then information as the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, concerning such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Third Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeClaim.
(b) Upon receipt of If the Indemnification Claim involves a Notice of Third Party Claim, the Indemnifying Party procedures set forth in Section 12.4 hereof shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered observed by the Indemnitee to and the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartyIndemnitor.
(c) If the Indemnifying Indemnification Claim involves a matter other than a Third Party fails Claim, the Indemnitor shall have thirty (30) Business Days to assume the defense object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim orby the Indemnitor and the Indemnification Claim shall be paid within ten (10) Business Days. If an objection is timely interposed by the Indemnitor, having assumed then the defense Indemnitee and settlement the Indemnitor shall negotiate in good faith for a period of sixty (60) Business Days from the date (such period is hereinafter referred to as the “Negotiation Period”) the Indemnitee receives such objection. After the Negotiation Period, if the Indemnitor and the Indemnitee still cannot agree on the amount of an Indemnification Claim, fails reasonably to contest either the Indemnitor or the Indemnitee may submit the dispute concerning such Indemnification Claim for resolution as provided in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such ClaimSection 15.2 below; provided, however, that (i) nothing herein shall prevent the Indemnifying Party shall be permitted parties from seeking equitable or injunctive relief in a court of equity with respect to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationdispute.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Payments Inc)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 Promptly after receipt by a Buyer Indemnified Party or 5.2Seller Indemnified Party, the party seeking indemnification as applicable (the “IndemniteeIndemnified Party”), of written notice of the assertion or the commencement of any claim or other litigation by a third party with respect to any matter referred to in Sections 8.2(a), 8.2(b), 8.3(a) or 8.3(b), the Indemnified Party shall promptly provide give written notice (the “Notice of Claim”) thereof to the other party Seller or parties obligated to provide indemnification Buyer, as applicable (the “Indemnifying Party”). Providing , which notice shall include a description of the Notice claim or litigation, the amount of Claim Losses asserted in connection therewith (to the extent known and quantifiable) and the basis for the claim or litigation, and thereafter shall be a condition precedent to any Liability of keep the Indemnifying Party hereunderreasonably informed with respect thereto; provided, and however, that failure of the failure Indemnified Party to provide prompt give such notice as provided herein will shall not relieve the Indemnifying Party of its obligations hereunder but only if and except to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the is actually prejudiced thereby.
(b) The Indemnifying Party shall be entitled to participate therein and, in the defense of such claim or litigation giving rise to the extent that it Indemnified Party’s claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to the limitations set forth below) shall wish, be entitled to assume the defense thereof, with thereof by appointing a reputable counsel reasonably satisfactory acceptable to such Indemnitee and, after notice from the Indemnifying Indemnified Party to be the lead counsel in connection with such Indemnitee defense; provided, however, that:
(i) the Indemnified Party shall be entitled to participate in the defense of such election claim or litigation and to employ counsel of its choice for such purpose, so to assume long as the defense thereof, fees and expenses of such separate counsel are borne by the Indemnified Party;
(ii) the Indemnifying Party shall not be liable entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee hereunder for any legal Indemnified Party) and shall pay the reasonable fees and expenses of other counsel or any other expenses, in each case subsequently incurred retained by the Indemnitee, Indemnified Parties if (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, action or indictment; or (B) the claim seeks an injunction or equitable relief against the Indemnified Party(ies);
(iii) at any time during the pendency of such claim or any litigation or other proceeding relating thereto, the Indemnified Party may assume control of the defense thereof other than reasonable costs and settlement of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for such claim upon prior written notice to the Indemnifying Party cannot represent both the Indemnitee and if the Indemnifying Party because fails to defend such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with claim; and
(iv) if the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense assumes control of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shallthe Indemnified Party shall agree to any settlement, except with the written consent compromise or discharge of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of Losses in connection with such claim or such shorter period as may be appropriate under litigation and does not impose any material obligations or material restrictions on the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”)Indemnified Party in any manner; provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party shall obtain the amount prior written consent of the Loss in Indemnified Party before entering into any settlement of a claim or litigation or ceasing to defend such claim or litigation if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from all liabilities with respect thereof has not yet been determinedto such claim or litigation, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partywithout prejudice.
(c) If In order for any Indemnified Party to be entitled to any indemnification pursuant to this Article VIII, the Indemnified Party shall notify the Indemnifying Party fails to assume the defense in writing within ten (10) Business Days of such Claim orIndemnifying Party becoming aware of the event giving rise to such Indemnified Party’s claim for indemnification, having assumed specifying in reasonable detail the defense and settlement basis of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claimclaim; provided, however, that (i) failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall be permitted to join in the defense and settlement have been actually prejudiced as a result of such Claim and to employ counsel at its own expense, (ii) failure. The Indemnified Party shall thereupon give the Indemnifying Party shall cooperate with reasonable access to the Indemnitee in books, records and assets of the defense Indemnified Party which evidence or support such claim or the act, omission or occurrence giving rise to such claim and settlement the right, upon prior notice during normal business hours, to interview any Representative of such Claim in Indemnified Party, including outside legal counsel, accountants and financial advisors of the Indemnified Party related thereto. If the Indemnifying Party disputes its liability with respect to any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of claim, the Indemnifying Party and giving them due considerationthe Indemnified Party shall proceed to negotiate a resolution of such dispute for a period of thirty (30) days. If after the conclusion of such thirty (30) day period the dispute has not been resolved, either the Indemnifying Party or Indemnified Party may seek resolution such dispute shall be resolved through the procedures set forth in Section 10.12 of this Agreement.
(d) If an Indemnified Party becomes aware of a third party action that the Indemnified Party believes, in good faith, may result in a claim with respect to a matter referred to in Sections 8.2(c) or 8.3(c), the Indemnified Party shall promptly notify the Indemnifying Party of such action. The Indemnifying Party shall make conduct the defense of such action and shall, to the extent reasonably requested by the Indemnified Party from time to time, give updates as to the status of such action. The Indemnified Party shall be entitled to participate in any payment required such defense at its sole cost and expense. The Indemnifying Party may agree to be made under this Article any settlement or compromise of any such third party action in cash its sole discretion, so long as such settlement or compromise (i) does not obligate any Indemnified Party to take or refrain from taking any action and on demand(ii) provides for a complete release of the Indemnified Party by such third party. Any payments required to be paid such settlement or compromise by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to represent the Indemnitee, immediately upon demand, interest at agreement of the rate of 10% per annum, not to exceed Indemnifying Party that the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest Losses incurred in connection therewith shall be considered to be Losses indemnifiable hereunder.
(e) The procedures for providing the Escrow Agent notice of any claims against the Holdback Amount by the Indemnified Parties, the resolution of any disputes in connection with the Holdback Amount, and the release of any portion of the IndemniteeHoldback Amount to Seller or the Buyer Indemnified Parties shall be addressed in the Escrow Agreement.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2Whenever a claim shall arise for indemnification under this Article XI, the party seeking entitled to indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice (notify the “Notice of Claim”) to the other party or parties obligated to provide from which indemnification is sought (the “Indemnifying Party”). Providing ) of such claim and, when known, the Notice facts constituting the basis for such claim; provided, however, that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall be a condition precedent give such notice thereof to any Liability of the Indemnifying Party hereundernot later than ten Business Days prior to the time any response to the asserted claim is required, if possible, and the in any event within five Business Days following receipt of notice thereof; provided, further, that no delay or failure to provide prompt give such notice as provided herein will by the Indemnified Party to the Indemnifying Party shall adversely affect any of the other rights or remedies which the Indemnified Party has under this Agreement, or alter or relieve the Indemnifying Party of its obligations hereunder but only if and obligation to indemnify the Indemnified Party, except to the extent that such delay or failure has materially prejudices prejudiced the Indemnifying Party. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party hereundermay (subject to Section 1.8 and except with respect to the ARC Product Issue, in respect of which Sections 11.6(c), (d), and (e) shall apply) at its sole cost and expense, assume the defense thereof by written notice within 30 calendar days, using counsel that is reasonably satisfactory to the Indemnified Party. In case If an Indemnifying Party assumes the defense of any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, take all steps necessary in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs including the settlement of investigationany case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the Indemnitee reasonably believes defense of any claim or Legal Proceeding by a third party as provided herein, shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such third party of the Indemnified Party), or consent to the entry of any judgment that counsel for does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article XI, including, but not limited to, by providing (except with respect to the ARC Product Issue, in respect of which Sections 11.6(c), (d), and (e) shall apply) the other party with reasonable access to employees and officers (including as witnesses) and other information. So long as the Indemnifying Party canis in good faith defending such claim or Legal Proceeding, the Indemnified Party shall not represent both compromise or settle such claim without the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingswhich consent shall not be unreasonably withheld, conditioned or delayed. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in does not assume the defense of any such claim or litigation, shall, except litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or Legal Proceeding in such manner as it may deem appropriate, including settling such claim or Legal Proceeding (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the written consent Indemnified Party may reasonably deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteethis Section 11.3.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as The parties acknowledge that Seller expressly disputes any claim that ARC bears any responsibility for any losses that may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, suffered or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by third parties arising out of or in connection with the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartyARC Product Issue.
(c) Whenever any claim or Legal Proceeding by a third party is brought against ARC in connection with the ARC Product Issue (a “Third Party ARC Claim”), Purchaser shall promptly notify Seller of such Third Party ARC Claim not later than ten Business Days prior to the time any response to the asserted Third Party ARC Claim is required, if possible, and in any event within five Business Days following receipt of notice thereof and, when known, the facts constituting the basis for such Third Party ARC Claim. Upon receipt by Seller of such notice, Seller may at its election either (i) promptly acknowledge that such Third Party ARC Claim is a Valid Claim or (ii) cooperate with Purchaser in good faith for a period of ten (10) Business Days in an attempt to mutually agree that such Third Party ARC Claim is a Valid Claim. If following that ten (10) Business Day period, Seller and Purchaser have not been able to mutually agree that such Third Party ARC Claim is a Valid Claim, then Seller shall be and remain liable for indemnification pursuant to Section 11.2(a)(iv), and shall indemnify the Purchaser Indemnified Group for any Losses in accordance therewith, unless and until a determination is made by an expert single arbitrator appointed pursuant to this Section 11.6(c) (the “Expert Arbitrator”), in arbitration proceedings conducted pursuant to Section 11.6(e) below, that the relevant Third Party ARC Claim is not a Valid Claim. If the Indemnifying Seller wishes the Expert Arbitrator to determine whether a Third Party fails ARC Claim is a Valid Claim, Seller shall give written notice thereof to Purchaser and the parties will seek in good faith to mutually agree on the identity of the Expert Arbitrator. Failing such agreement within thirty (30) Business Days from the date of receipt by Purchaser of such notice from Seller, the Expert Arbitrator will be selected pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The Expert Arbitrator shall, whether agreed by the parties or selected pursuant to the Commercial Arbitration Rules of the American Arbitration Association, be a single arbitrator who has not less than 7 years’ experience practicing as an attorney-at-law in the United States in the dispute resolution field and who has not less than 10 years’ particularized knowledge regarding product liability and recall claims in the automotive industry in the United States.
(d) For purposes of this Agreement, a “Valid Claim” shall be a Third Party ARC Claim that is either mutually agreed by the parties in writing, or determined by the Expert Arbitrator, in arbitration proceedings conducted pursuant to Section 11.6(e) below, to be a claim in respect of which it cannot be said that the relevant third party has no real prospect of succeeding in its claim if the matter were to come before a court or arbitral body of competent jurisdiction.
(e) In the event that Seller wishes the determination of the Expert Arbitrator as to whether a Third Party ARC Claim is a Valid Claim pursuant to Section 11.6(c), the arbitration conducted by the Expert Arbitrator shall be administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the determination rendered by the Expert Arbitrator may be entered in any court having jurisdiction thereof. The parties will jointly advise the Expert Arbitrator that they desire an expedited arbitration process that will, to the extent practicable, result in any arbitration award being entered within three (3) months of confirmation of the Expert Arbitrator’s appointment. If the Expert Arbitrator determines that the relevant Third Party ARC Claim is a Valid Claim, Seller’s indemnification obligation pursuant to Section 11.2(a)(iv) in respect of such Third Party ARC Claim shall not be qualified by Sections 11.6(c), (d) and (e). If the Expert Arbitrator determines that the relevant Third Party ARC Claim is not a Valid Claim, Purchaser shall, within ten (10) Business Days after such determination, pay to Seller an amount equal to the amount of any Losses in respect of which Seller has prior to the date thereof indemnified the Purchaser Indemnified Group pursuant to Sections 11.2(a)(iv) and 11.6(c) in respect of such Third Party ARC Claim.
(f) Any Losses suffered by the Purchaser Indemnified Group as a result of a Third Party Claim being the subject of a decision or award in favor of the relevant third party by a court or arbitral body of competent jurisdiction shall not be subject to the provisions of Sections 11.6(c), (d) and (e) hereof, and Seller’s indemnification obligation pursuant to Section 11.2(a)(iv) shall not be qualified by Sections 11.6(c), (d) and (e).
(g) The parties acknowledge that from Closing ARC will not be a controlled Affiliate of Purchaser and that, accordingly, Purchaser may not be able to procure that Seller is able to assume the defense of such Claim orThird Party ARC Claims, having assumed or that Seller has unfettered access to employees and officers of ARC and other information of ARC in connection with Third Party ARC Claims. Purchaser agrees to use its commercially reasonable best efforts (including without limitation by exercise of its rights as a shareholder of ARC) to cause ARC (a) to reasonably cooperate with Seller and Seller’s insurance providers to process any Third Party ARC Claim, and (b) to permit Seller to assume the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Third Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationARC Claims.
(h) If Purchaser, notwithstanding that from Closing ARC will not be a controlled Affiliate of Purchaser, is able to cause ARC to agree in writing at the relevant time to permit Seller to assume the defense of a Third Party ARC Claim, using counsel that is reasonably satisfactory to Purchaser and ARC, and otherwise in accordance with the provisions of Section 11.6(a), then Seller shall have no right to seek to have the Expert Arbitrator make any determination and Seller’s indemnification obligation pursuant to Section 11.2(a)(iv) shall not be qualified by Sections 11.6(c), (d) The Indemnifying and (e). For the avoidance of doubt, if Seller is permitted by ARC to assume the defense of a Third Party ARC Claim in accordance with the provisions of Section 11.6(a), but Seller elects not to assume such defense or fails to give written notice so to assume within 30 calendar days after receipt of such permission from ARC, then Seller shall have no right to seek to have the Expert Arbitrator make any payment required determination as to whether the relevant Third Party ARC Claim is a Valid Claim and Seller’s indemnification obligation pursuant to Section 11.2(a)(iv) shall not be made under this Article in cash qualified by Sections 11.6(c), (d) and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee(e).
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Procedures for Indemnification. (a) If there occurs a party entitled to indemnification under this Section 11 (an event “Indemnified Party”) asserts that either party asserts it has suffered or incurred a Loss for which it is an indemnifiable event entitled to indemnification from the Indemnity Escrow Account pursuant to Section 5.1 11.2 or 5.2that a party obligated to indemnify it has become obligated to such Indemnified Party pursuant to Section 11.3 or 11.4, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnified Party may become entitled to indemnification from the Indemnity Escrow Account pursuant to Section 11.2 or a party obligated to indemnify it has become obligated to an Indemnified Party under Section 11.3 or 11.4, such Indemnified Party shall give prompt written notice to (i) in the case of a claim for indemnification pursuant to Section 11.2, the party seeking Seller Representative, (ii) in the case of a claim for indemnification pursuant to Section 11.3, the applicable Seller against whom such claim is asserted, and (iii) in the “Indemnitee”) shall promptly provide notice case of a claim for indemnification pursuant to Section 11.4, the Buyer (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the each such person, an “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent No delay in delivering such written notice to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will shall relieve the Indemnifying Party from any obligation hereunder or prevent the Indemnifying Party from recovering in respect of its obligations hereunder but only if any claim for indemnification pursuant to and in accordance with this Section 11 unless, and then solely to the extent that such failure materially prejudices that, the Indemnifying Party hereunderis actually and materially prejudiced thereby. In case any such action shall Such notice by the Indemnified Party will describe the claim giving rise to an obligation of indemnification in reasonable detail and will indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be brought against any Indemnitee and it shall provide a Notice of Claim sustained by the Indemnified Party. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim. Within 30 days after delivery of a notice pursuant to this Section 11.6 (the commencement thereof“Response Period”), the Indemnifying Party shall be entitled to participate therein and, deliver to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory Indemnified Party a written response to such Indemnitee andnotice. If, after notice from during the Indemnifying Party to such Indemnitee of such election so to assume the defense thereofResponse Period, the Indemnifying Party delivers a written notice disputing the Indemnified Party’s entitlement to indemnification of the Losses described in such notice, the parties shall not be liable use their commercially reasonable efforts to settle such disputed matters within 30 days following the expiration of the Response Period. The parties hereto acknowledge and agree that the Federal Rules of Evidence Rule 408 shall apply to the Indemnitee hereunder for parties hereto during any legal expenses of other counsel or such negotiations and any other expensessubsequent dispute arising therefrom. If the parties are unable to reach agreement within such 30-day period, in each case subsequently incurred the dispute may be resolved by the Indemnitee, in connection any legally available means consistent with the provisions of Section 15.2.
(b) This Section 11.6(b) shall apply to any suit, action, investigation, claim or proceeding asserted by a third party against an Indemnified Party (a “Third-Party Claim”). The parties hereto shall cooperate and provide reasonable assistance in the defense thereof other than reasonable costs or prosecution thereof. The Indemnified Party may not settle or compromise any Third-Party Claim without the prior written consent of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party can(not represent both to be unreasonably withheld, conditioned or delayed). No Indemnified Party nor any of its Affiliates will admit any liability with respect to, or settle, compromise or discharge any Third-Party Claim without the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingsconsent not to be unreasonably withheld or delayed. The Indemnitee agrees to reasonably cooperate with Indemnified Party and the Indemnifying Party and its counsel will cooperate with each other in all reasonable respects in connection with the defense against of any Third-Party Claim, including making available records relating to such asserted liability. In any eventThird-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the Indemnitee shall have defending party, management employees of the right to participate at its own expense in non-defending party as may be reasonably necessary for the preparation of the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Third-Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If To the Indemnifying Party fails to assume the defense extent of such Claim orany conflict between Section 10.2(b) and this Section 11.6, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (iSection 10.2(b) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationgovern.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
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Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2Whenever a claim shall arise for indemnification under this Article XII, the party seeking entitled to indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice (notify the “Notice of Claim”) to the other party or parties obligated to provide from which indemnification is sought (the “Indemnifying Party”). Providing ) of such claim and, when known, the Notice facts constituting the basis for such claim; provided, however, that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall be a condition precedent give such notice thereof to any Liability of the Indemnifying Party hereundernot later than ten (10) Business Days prior to the time any response to the asserted claim is required, if possible, and the in any event within five (5) Business Days following receipt of notice thereof; provided, further, that no delay or failure to provide prompt give such notice as provided herein will by the Indemnified Party to the Indemnifying Party shall adversely affect any of the other rights or remedies which the Indemnified Party has under this Agreement or the other Operative Documents, or alter or relieve the Indemnifying Party of its obligations hereunder but only if and obligation to indemnify the Indemnified Party, except to the extent that such delay or failure has materially prejudices prejudiced the Indemnifying Party. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party hereundermay, at its sole cost and expense, assume the defense thereof by written notice within 30 calendar days, using counsel that is reasonably satisfactory to the Indemnified Party. In case If an Indemnifying Party assumes the defense of any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, take all steps necessary in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs including the settlement of investigationany case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the Indemnitee reasonably believes defense of any claim or Legal Proceeding by a third party as provided herein, shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such third party of the Indemnified Party), or consent to the entry of any judgment that counsel for does not relate solely to monetary damages arising from, any such claim or Legal Proceeding by a third party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article XII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information. So long as the Indemnifying Party canis in good faith defending such claim or proceeding, the Indemnified Party shall not represent both compromise or settle such claim without the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingswhich consent shall not be unreasonably withheld, conditioned or delayed. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in does not assume the defense of any such claim or litigation, shall, except litigation in accordance with the written consent of each Indemniteeterms hereof, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to Indemnified Party may defend against such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Personsin such manner as it may deem appropriate, including any Governmental settling such claim or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the litigation (after giving prior written consent notice of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted same to the Indemnifying Party and obtaining the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further prior written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost consent of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee which consent shall not settle be unreasonably withheld, conditioned or delayed) on such Claim without soliciting terms as the views of the Indemnifying Indemnified Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentmay reasonably deem appropriate, and the Indemnifying Party shall pay to will promptly indemnify the Indemnitee, immediately upon demand, interest at Indemnified Party in accordance with the rate provisions of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteethis Section 12.4.
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Procedures for Indemnification. Effective as of the Closing Date, the following procedures shall apply to claims under this Agreement by one party against the other for indemnification:
(a) If there occurs an event that either A party asserts is an indemnifiable event pursuant entitled to Section 5.1 or 5.2, indemnification hereunder (the "Indemnified Party") will give the party seeking required to provide such indemnification (the “Indemnitee”"Indemnifier") shall promptly provide prompt written notice of any legal proceeding, claim or demand (in each case, a "Claim") for which the “Notice of Claim”) Indemnified Party is entitled to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if no delay on the Indemnitee reasonably believes that counsel part of the Indemnified Party in notifying the Indemnifier will relieve the Indemnifier from any obligation hereunder unless (and then solely to the extent) the Indemnifier is materially prejudiced as a result thereof.
(b) Within ten (10) Business Days after receipt of such notice from the Indemnified Party, which notice shall include a statement setting forth the basis for the Indemnifying Party cannot represent both Indemnified Party's belief that the Indemnitee and Indemnifier is responsible for such Claim, the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee Indemnifier shall have the right, by giving written notice to the Indemnified Party, but without acknowledgment of any liability for indemnity of the Claim and without prejudice to the right to defend against any such liability, to defend, at the sole cost and expense of the Indemnifying PartyIndemnifier, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Indemnified Party and its counsel in the defense against any such asserted liability. In Claim or to negotiate, settle or otherwise deal with any eventsuch Claim and to provide counsel for the Indemnified Party, selected by the Indemnitee shall have Indemnifier, which is reasonably satisfactory to the right to Indemnified Party; provided, that the Indemnified Party may participate in any proceeding with counsel of its choice and at its own expense and may join in such proceeding its claim for indemnity hereunder. Neither the defense of such asserted liability. No Indemnifying Party, in Indemnifier nor the defense Indemnified Party may enter into a settlement of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and other if the objection relates other reasonably believes such settlement would be materially detrimental to the amount of the Loss assertedits business, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, reputation or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partyfuture prospects.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. The respective obligations and liabilities of the Questor Investors, on the one hand, and the Company and the Existing Investors, on the other hand (athe "INDEMNIFYING PARTY"), to the other (the "PARTY TO BE INDEMNIFIED") If there occurs an event that either party asserts is an indemnifiable event pursuant under Section 18(b) hereof with respect to Section 5.1 claims resulting from the assertion of liability by third parties shall be subject to the following procedures:
(A) within 20 days after receipt of notice of commencement of any action or 5.2the assertion in writing of any claim by a third party, the party seeking indemnification (to be indemnified shall give the “Indemnitee”) shall promptly provide indemnifying party written notice (the “Notice thereof together with a copy of Claim”) to the such claim, process or other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunderlegal pleading, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee indemnifying party shall have the right to defendundertake the defense thereof by representatives of its own choosing; provided that the omission so to notify the indemnifying party will not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 18(c) and shall not relieve the indemnifying party from liability under this Section 18(c) unless such indemnifying party is prejudiced by such omission;
(B) in the event that the indemnifying party, at by the sole cost and expense 30th day after receipt of notice of any such claim (or, if earlier, by the tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the Indemnifying Partyperson asserting such claim), does not elect to defend against such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any eventclaim, the Indemnitee shall party to be indemnified will (upon further notice to the indemnifying party) have the right to participate at its own expense in undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such asserted liability. No Indemnifying Partyclaim at any time prior to settlement, in compromise or final determination thereof, provided that the defense indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(C) anything in this Section 18(c) to the contrary notwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or litigationother money payments, shallthe indemnifying party shall have the right, except with at its own cost and expense, to compromise or settle such claim, but (ii) the indemnifying party shall not, without the prior written consent of each Indemniteethe party to be indemnified, settle or compromise any claim or consent to the entry of any judgment or enter into any settlement that which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the party to be indemnified a release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only liability in respect of such claim; and
(D) in connection with any such indemnification, the amount indemnified party will cooperate in all reasonable requests of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partyindemnifying party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Purchase and Registration Rights Agreement (Aegis Communications Group Inc)
Procedures for Indemnification. (a) If there occurs an event that either party which any Buyer Indemnitee asserts is an indemnifiable event pursuant to Section 5.1 7.2 or 5.27.3, the party seeking indemnification (the “Indemnitee”) Buyer or Buyer Indemnitee shall promptly provide notice (the “Notice of Claim”) to the other party or parties Seller that is obligated to provide indemnification hereunder (each, a “Seller Indemnifying Party” and collectively, the “Seller Indemnifying PartyParties”) or to the Sellers Representative on behalf of such Seller Indemnifying Party(ies). Providing the Notice of Claim shall be a condition precedent to any Liability liability of the Seller Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Seller Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Seller Indemnifying Party hereunder.
(b) If there occurs an event which any Seller Indemnitee asserts is an indemnifiable event pursuant to Section 7.4, the Sellers Representative on behalf of a Seller Indemnitee shall promptly provide a Notice of Claim to the Buyer, as the party obligated to provide indemnification (the “Buyer Indemnifying Party” and together with the Seller Indemnifying Parties, each shall be referred to as an “Indemnifying Party” and collectively, the “Indemnifying Parties”). Providing the Notice of Claim shall be a condition precedent to any liability of the Buyer Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Buyer Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Buyer Indemnifying Party hereunder.
(c) In case any such action third-party Action or Proceeding shall be brought against any Indemnitee and it Buyer Indemnitee, Buyer, on behalf of the Buyer Indemnitees shall provide a Notice of Claim to the Seller Indemnifying Party Party, or to the Sellers Representative on behalf of such Seller Indemnifying Party(ies), of the commencement thereof. The Buyer Indemnitee shall then have the right, in its sole discretion, to defend and settle or resolve any such claim, and the Indemnifying Party reasonable cost and expense incurred by the Buyer Indemnitees in connection with such defense, settlement or resolution shall be included in Losses for which the Buyer Indemnitees shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationindemnification hereunder; provided, however, that if (i) the Indemnitee reasonably believes that counsel Buyer Indemnitees shall not agree to any settlement in excess of $250,000 individually, or $500,000 in the aggregate for all such settlements, without the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense prior written consent of the Indemnifying PartySellers Representative, such action by all appropriate proceedingsprior written consent not to be unreasonably withheld, conditioned or delayed (and with the Sellers Representative agreeing to respond in writing within 15 Business Days of written notice to the Sellers Representative of a proposed settlement with an acceptance or rejection of such settlement, and in the case of an objection, the details and basis therefor), and (ii) any settlement without the prior written consent of the Sellers Representative shall not in and of itself be determinative of the existence of such Losses or whether such matter is indemnifiable hereunder. The Indemnitee agrees to reasonably cooperate with Sellers Representative, on behalf of the Seller Indemnifying Party and its counsel in the defense against any such asserted liability. In any eventParty(ies), the Indemnitee shall have the right to participate at its or the Seller Indemnifying Party(ies) own expense in the defense of such asserted liability. No Indemnifying Party, in claim (to the extent that such participation does not affect any privilege relating to any Buyer Indemnitee) but shall not be entitled to assume or control the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteeclaim.
(bd) Upon receipt of a Notice of Claim, the Indemnifying Party (or, if applicable, the Sellers Representative on behalf of such Indemnifying Party) shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 20-day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party (or, if applicable, the Sellers Representative on behalf of such Indemnifying Party) setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 20-day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(ce) If a Contest Notice is provided to the Indemnitee within the 20-day period referred to in Section 7.5(d), the Indemnitee and the Indemnifying Party fails to assume (or, if applicable, the defense Sellers Representative on behalf of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim Indemnifying Party) shall attempt in good faith, faith for 45 days after the Indemnitee, without waiving its right to indemnification, may assume, at the cost ’s receipt of the Indemnifying Party, Contest Notice to resolve such objection. If the defense Indemnitee and settlement of such Claim; provided, however, that (i) the Indemnifying Party (or, if applicable, the Sellers Representative on behalf of such Indemnifying Party) shall so agree, a memorandum setting forth such agreement shall be permitted prepared and signed by both parties. If no such agreement can be reached during the 45-day period for good faith negotiation, but in any event upon the expiration of such 45-day period, either the Buyer or Sellers Representative may submit the dispute to join mandatory, final and binding arbitration pursuant to Section 10.15 below and the decision of the arbitrator as to the validity and amount of any claim in the defense relevant Notice of Claim shall be nonappealable, binding and settlement of such Claim and conclusive upon the parties to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationthis Agreement.
(df) The Subject to the foregoing, the Indemnifying Party shall make any payment required to be made under this Article in cash and on demanddemand (to the extent, if applicable, that such amount is not recovered by Buyer from the Escrow Fund). Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days 10 Business Days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 105% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Vocera Communications, Inc.)
Procedures for Indemnification. The procedure for indemnification shall be as follows:
(a) If there occurs an event that either party asserts a claim for indemnification is an indemnifiable event brought pursuant to Section 5.1 or 5.2the terms of this Agreement, the party seeking Indemnified Party claiming indemnification (the “IndemniteeClaimant”) shall promptly provide give written notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunderof any claim, whether between the Parties or involving a third party (a “Third Party Claim”), promptly after receiving notice or becoming aware thereof, and such notice shall specify in reasonable detail (i) the factual basis for such claim, (ii) a copy of all papers served with respect to such claim (if any), (iii) the amount of the claim, and (iv) the basis of the Claimant’s request for indemnification under this Agreement; provided, however, that any delay or failure to provide prompt by the Claimant in giving such notice as provided herein will shall not relieve the Indemnifying Party of its obligations hereunder but under this Agreement except and only if and to the extent that such failure materially prejudices the Indemnifying Party hereunderis actually and materially damaged by such delay. In case any If the matter to which a claim relates shall not have been resolved as of the date of the claim notice, the Claimant shall estimate the amount of the claim in the notice (which estimate shall not be conclusive of the final amount of such action Claim) and specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If a Claimant gives a notice for an Unliquidated Claim, the Claimant shall be brought against any Indemnitee also give a second notice (the “Liquidated Claim Notice”) within sixty (60) days after the matter giving rise to the claim becomes finally resolved, and it the Liquidated Claim Notice shall provide specify the amount of the claim.
(b) If the notice from the Claimant delivered pursuant to Section 8.04(a) above pertains solely to a Notice breach of Claim representation, warranty, covenant or agreement contained in this Agreement or other similar demand for direct indemnification pursuant to this Agreement, then the Indemnifying Party shall have forty five (45) calendar days following receipt of the commencement Claimant’s notice (and, in the case of an Unliquidated Claim, forty five (45) calendar days following receipt of the Liquidated Claim Notice) to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said forty five (45) day period (or any mutually agreed upon extension thereof) on the validity and amount of such claim (or such other amount agreed to by the applicable Parties), the Indemnifying Party shall promptly thereafter pay to the Claimant the full amount of the claim, subject to the terms and conditions in this ARTICLE IX. Otherwise, the applicable Parties shall have such rights as may be entitled available to participate therein them under this Agreement and applicable Legal Requirements.
(c) If the notice from the Claimant delivered pursuant to Section 8.04(a) above pertains to a Third Party Claim, then, the Indemnifying Party shall have sixty (60) calendar days following receipt of the Claimant’s notice (and, in the case of an Unliquidated Claim, sixty (60) calendar days following receipt of the Liquidated Claim Notice) to (i) make such investigation of the claim or demand as the Indemnifying Party deems reasonably necessary or desirable and (ii) notify the Claimant in writing of whether or not the Indemnifying Party desires to defend the Claimant against such claim or demand. During such sixty (60) day period, or until such earlier time as the Claimant receives notice that the Indemnifying Party desires to defend such claim, the Claimant 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; provided, however, that any delay or failure by the Claimant to do so shall not relieve the Indemnifying Party of its obligations under this Agreement except and only to the extent that it the Indemnifying Party is actually and materially damaged by such delay or failure.
(d) If the Indemnifying Party acknowledges in writing its obligation to provide indemnification hereunder if such Third Party Claim is ultimately successful, the Indemnifying Party may elect to defend the Claimant against such Third Party Claim, and then the Indemnifying Party shall wish, have the sole power to direct and control such defense. Upon confirmation by the Indemnifying Party of its obligation to provide indemnification if such Third Party Claim is ultimately successful and of its desire to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim or demand on the Indemnifying Party to such Indemnitee of such election so to assume the defense thereofterms set forth above, the Indemnifying Party shall not be liable to the Indemnitee hereunder Claimant for any legal fees and expenses of other counsel or any other expenses, in each case subsequently incurred by the IndemniteeClaimant, in connection with subject to reimbursement for reasonable actual out-of-pocket expenses incurred by the defense thereof other than reasonable costs Claimant as the result of investigation; provided, however, that if the Indemnitee reasonably believes that counsel a request for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of cooperation or assistance by the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at in the time reasonable opinion of counsel to the Claimant, there exists a Notice conflict of Claim is submitted to interest between the Indemnifying Party and the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss assertedClaimant, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount Claimant shall be promptly paid over entitled to the Indemnitee. If no engage its own counsel and reasonable attorney’s fees of such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, counsel shall be deemed established and accepted borne by the Indemnifying Party.
(c) . If the Claimant desires to participate in, but not control, any such defense, it may do so at its sole cost and expense. The Indemnifying Party shall notify the Claimant promptly following any determination by the Indemnifying Party fails that the tendered claim or demand is not subject to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably indemnification pursuant to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such ClaimARTICLE IX; provided, however, that the Indemnifying Party agrees that up through the time of any such notification, it shall use its good faith and reasonable efforts to protect and preserve any rights of the Claimant with respect to such claim or demand.
(e) If the Indemnifying Party does not acknowledge its obligation to provide indemnification hereunder or elects not to defend the Claimant against such Third Party Claim, the Claimant 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. Such defense shall be at the Claimant’s sole cost and expense; provided, however, that the Indemnifying Party shall reimburse the Claimant for all reasonable actual out-of-pocket costs and expenses incurred by the Claimant (including reasonable attorneys’ fees) in connection with such defense if it is ultimately determined that the Claimant is entitled to indemnification from the Indemnifying Party for such Third Party Claim pursuant to the terms hereof.
(f) In connection with any Third Party Claim subject to the procedures set forth in this Section 8.04(d), (i) the Claimant shall not settle, compromise, discharge or otherwise admit to any liability for any claim or demand for which indemnification may be sought under this Agreement, without the prior written consent of the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with not settle, compromise, discharge or otherwise admit to any liability for any claim or demand that requires any action of the Indemnitee in Claimant including for the defense and settlement payment of such Claim in any manner reasonably requested by the Indemnitee and money (iii) the Indemnitee shall not settle such Claim without soliciting the views of unless the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required agrees in writing to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days liable for such payments) without the prior written consent of the date on which Claimant (it being acknowledged and agreed that any such settlement, compromise, discharge or admission may be rejected by the Claimant in its sole discretion if such settlement, compromise, discharge or admission (1) does not fully release the Claimant as part of such settlement, compromise, discharge or admission or (2) imposes any obligation becomes final shall thereafter be deemed delinquent, and or restriction upon the Claimant other than the payment of obligations that the Indemnifying Party shall pay agrees in writing to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeassume).
Appears in 1 contract
Sources: Stock Purchase Agreement (Massive Interactive, Inc.)
Procedures for Indemnification. (a) If there occurs an event that either any action, suit or proceeding shall be commenced by a third party asserts against, or any claim or demand be asserted against, Seller or Buyer, as the case may be, in respect of which Seller or Buyer is an indemnifiable event pursuant entitled to demand indemnification under Section 5.1 or 5.213 of this Agreement, then, the party seeking indemnification (the “"Indemnitee”") shall promptly provide notice (the “Notice of Claim”) to notify the other party or parties obligated ("Indemnitor") in writing to provide indemnification (the “Indemnifying Party”)that effect and with reasonable particularity. Providing the Notice of Claim shall be a condition precedent to any Liability The failure of the Indemnifying Party hereunder, and Indemnitee to notify the failure to provide prompt notice as provided herein will Indemnitor within a reasonable time of the commencement of such action or such claim or demand shall relieve the Indemnifying Party Indemnitor of its obligations hereunder but pursuant to this Section 13 only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim is prejudicial to the Indemnifying Party of Indemnitor's ability to favorably settle or defend such action, claim or demand. The Indemnitor shall have, subject to the commencement thereoffollowing sentence, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, right to assume the defense thereofcontrol of the defense, compromise or settlement of such action, suit, proceeding or claim, including the selection of counsel, subject to the right of the Indemnitee to participate (at its own expense and with counsel reasonably satisfactory to such Indemnitee andof its choice) in the defense, after notice from the Indemnifying Party to such Indemnitee compromise or settlement of such election so to assume action, suit, proceeding, claim or demand, and in connection therewith the defense thereofIndemnitee shall cooperate fully in all respects with the Indemnitor in any such defense, the Indemnifying Party shall compromise or settlement. The Indemnitor will not be liable compromise or settle any such action, suit, proceeding, claim or demand (or concede any matter related to the Indemnitee hereunder for any legal expenses determination of other counsel whether a loss arises or any other expenses, in each case subsequently incurred by relates to an Assumed Obligation or a Non-Assumed Liability) without the prior written consent of the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationwhich consent will not be unreasonably withheld or delayed; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee any dispute for which uncertainty exists as to whether a Loss will be an Assumed Obligation or a Non-Assumed Liability (other than disputes between Buyer and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interestSeller), then the Indemnitee shall have the right to defendapprove of Buyer's counsel, at which approval shall not unreasonably be withheld. So long as the sole cost and expense of the Indemnifying PartyIndemnitor is defending, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against good faith any such asserted liability. In any eventaction, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Partysuit, in the defense of any such proceeding, claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages demand asserted by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim a third party against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle or compromise such Claim action, suit, proceeding, claim or demand (or concede any matter related to the determination of whether a loss arises or relates to an Assumed Obligation or a Non-Assumed Liability) without soliciting the views prior written consent of the Indemnifying Party and giving them due consideration.
(d) Indemnitor, which consent will not be unreasonably withheld or delayed. The Indemnifying Party Indemnitee shall make available to the Indemnitor or its agents all records and other materials in the Indemnitee's possession reasonably required for contesting any payment required to be made under this Article in cash and on such third party claim or demand. Any payments required If the Indemnitor shall (a) fail to be paid by promptly and adequately defend any such action, suit, proceeding, claim or demand, or (b) if there is an Indemnifying Party under inherent conflict between the legal or factual positions of Indemnitor and Indemnitee, then the Indemnitee may defend, through counsel of its own choosing (at Indemnitee's own expense), such action, suit, proceeding, claim or demand and in the case of clause (a) of this Article that are not paid within five business days sentence (so long as Indemnitee gives the Indemnitor at least ten (10) days' notice of the date on terms of the proposed settlement thereof and permits the Indemnitor to then undertake the defense thereof if Indemnitor reasonably objects to the proposed settlement) to settle such action, suit, proceeding, claim or demand and to recover from the Indemnitor the amount of such Losses. Notwithstanding anything to the contrary herein, for any dispute for which such obligation becomes final shall thereafter uncertainty exists as to whether a Loss will be deemed delinquentan Assumed Obligation or a Non-Assumed Liability (other than disputes between Buyer and Seller), and the Indemnifying Party Buyer shall pay to the Indemnitee, immediately upon demand, interest at the rate for fifty percent (50%) of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the IndemniteeSeller's reasonable attorney's fees and other legal costs and expenses.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Centigram Communications Corp)
Procedures for Indemnification. (a) If there occurs an event that either party asserts Indemnified Party shall claim to have suffered a Loss for which indemnification is an indemnifiable event pursuant available under Section 8.2 or 8.3, as the case may be (for purposes of this Section 8.4, regardless of whether such Indemnified Party is entitled to receive a payment in respect of such claim by virtue of paragraph (c)(i) or (ii) of Section 5.1 or 5.28.2), the party seeking indemnification (the “Indemnitee”) Indemnified Party shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of notify the Indemnifying Party hereunderin writing of such claim as promptly as practicable, which written notice shall describe the nature of such claim, the facts and circumstances that give rise to such claim and the failure amount of such claim if reasonably ascertainable at the time such claim is made (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party). In the case of a claim by Parent or the Surviving Corporation, such written notice shall be provided by the Indemnified Party to provide prompt notice as the Company Representative, with a copy provided herein will relieve to the Escrow Agent. In the event that within thirty (30) days after the receipt by the Indemnifying Party of its obligations hereunder but only if and to such a written notice from the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofIndemnified Party, the Indemnifying Indemnified Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice not have received from the Indemnifying Party a written objection to such Indemnitee of claim, such election so claim shall be conclusively presumed and considered to assume the defense thereof, have been assented to and approved by the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred following receipt by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party(and, in the defense case of any such a claim by the Parent or litigationthe Surviving Corporation, shall, except with the Escrow Agent) of a written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof notice from the release of the Indemnitee from all Liability in respect Indemnified Party to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteeeffect.
(b) Upon receipt If within the thirty (30) day period described in paragraph (a) above the Indemnified Party (and, in the case of a Notice of Claimclaim by the Parent or the Surviving Corporation, the Escrow Agent) shall have received from the Indemnifying Party a written notice setting forth the Indemnifying Party’s objections to such claim and the Indemnifying Party’s reasons for such objection, then the Parties (including the Company Representative) shall have 20 calendar days negotiate in good faith for a period of ten (or 10) Business Days from the date the Indemnified Party receives such shorter objection (such period is hereinafter referred to as may be appropriate under the circumstances“Negotiation Period”). After the Negotiation Period, if the Parties still cannot agree on the claim, the Parties (including the Company Representative) to contest its indemnification obligation shall follow the procedures set forth in Section 8.7 below with respect to the resolution of such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partymatter.
(c) Upon determination of the amount of a claim that is binding on both the Indemnifying Party and the Indemnified Party, the amount of such claim shall be paid within ten (10) Business Days of the date such amount is determined. If the Indemnifying Party fails to assume the defense responsible for payment of such Claim orclaim is Parent, having assumed such payment shall be made by wire transfer to the defense and settlement of Company Representative, who shall be responsible for distributing any such Claim, fails reasonably payment by Parent to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost accounts of the Indemnifying Party, Company Securityholders in accordance with their respective percentages opposite the defense and settlement of such Claim; provided, however, that (i) Company Securityholders’ names on Schedule I hereto. If the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of responsible for payment of such delinquent sumsclaim is a Company Securityholder, which interest such payment shall be considered made by wire transfer by the Escrow Agent to be Losses an account designated by the Buying Group in accordance with the terms of the IndemniteeEscrow Agreement until such Company Securityholder’s portion of the Escrow Deposit is exhausted and such Loss shall be shared on a pro rata basis among all Company Securityholders. Notwithstanding anything contained herein to the contrary, the Parties hereby acknowledge and agree that the Plan shall not be subject to this Article VIII and therefore shall not share in any loss or benefit with respect to the Claims Amount of the Escrow Deposit.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs a party entitled to indemnification under this Section 10 (an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice asserts that a party obligated to indemnify it under this Section 10 (the an “Notice of ClaimIndemnitor”) has become obligated to such Indemnitee pursuant to Section 10.2 or 10.3, as the case may be, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnitor may become obligated to an Indemnitee hereunder, such Indemnitee shall give prompt written notice thereof to the other party or parties obligated Indemnitor; provided, however, that no delay in delivering such written notice to provide indemnification (the “Indemnifying Party”). Providing Indemnitor shall relieve the Notice of Claim shall be a condition precedent to Indemnitor from any Liability of the Indemnifying Party obligation hereunder, unless, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and then solely to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofthat, the Indemnifying Party Indemnitor is actually prejudiced thereby.
(b) The Indemnitor shall be entitled have the right, at its sole cost and expense, to participate therein in, and, to the extent that it shall may wish, to assume the defense thereofof, with counsel reasonably satisfactory to such any suit, action, investigation, claim or proceeding asserted by any third party against an Indemnitee and, after notice from that may result in the Indemnifying Party to incurrence by such Indemnitee of Losses for which such election so Indemnitee would be entitled to assume the defense thereof, the Indemnifying Party shall not be liable indemnification pursuant to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationthis Section 10; provided, however, that the Indemnitor shall not be entitled to assume the defense of any such suit, action, investigation, claim or proceeding, if (a) the Indemnitee reasonably believes determines that counsel for the Indemnifying Party cannot represent both amount of the Indemnitee and the Indemnifying Party because Losses in respect of such representation suit, action, investigation, claim or proceeding, if successful, would be reasonably likely to result in a conflict exceed the Indemnitor’s liability under this Agreement or (b) such suit, action, investigation, claim or proceeding involves an allegation of interest, then the violation of Applicable Law (including fiduciary and regulatory requirements thereunder) or seeks any non-monetary remedy. The Indemnitee shall have the right to defendright, at but not the sole cost and expense of the Indemnifying Partyobligation, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense thereof by counsel of the Indemnitee’s choice (except that the Indemnitor shall be responsible for the fees and expenses of one separate co-counsel for all Indemnitees to the extent the Indemnitee is advised, in writing by its counsel, that either (i) the counsel the Indemnitor has selected has a conflict of interest or (ii) there are legal defenses available to the Indemnitee that may be materially different from or additional to those available to the Indemnitor) and the Indemnitee shall in any event cooperate with and assist the Indemnitor to the extent reasonably possible. If the Indemnitor does not timely assume the defense of, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the Indemnitee shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and the Indemnitee shall be entitled to recover the entire cost thereof from the Indemnitor, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such asserted liability. No Indemnifying Partysuit, action, investigation, claim or proceeding, in each case subject to the limitations set forth herein; provided that the Indemnitee shall not settle any such suit, action, investigation, claim or proceeding without the consent of the Indemnitor (such consent not to be unreasonably withheld, conditioned or delayed) and shall keep the Indemnitor reasonably apprised of the status of the applicable suit, action, investigation, claim or proceeding and any efforts to settle the same upon request of the Indemnitor.
(c) With respect to any suit, action, investigation, claim or proceeding that the Indemnitor assumes the defense of any such claim or litigationin accordance with Section 10.4(b), shall, except with the written consent of each Indemnitee, Indemnitor shall not consent to the entry of any a judgment or enter into any settlement that with respect thereto, unless (i) the judgment or settlement provides solely for the payment of monetary damages and does not include as an unconditional term thereof impose injunctive or other equitable relief against the release of Indemnitee and (ii) the plaintiff or claimant in the matter releases the Indemnitee from all Liability liability or wrongdoing with respect thereto, in respect to such claim or litigation or that does not solely require the payment each case of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee clauses (i) and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party(ii) above, without the written consent of the IndemniteeIndemnitee (not to be unreasonably withheld or delayed). For the avoidance of doubt, settle the Indemnitor shall not consent to the entry of a judgment or enter into any Claim on terms that provide settlement with respect to any suit, action, investigation, claim or proceeding for (i) a criminal sanction against which the Indemnitee or (ii) injunctive relief affecting Indemnitor does not assume the Indemniteedefense in accordance with Section 10.4(b).
(bd) Upon receipt In all cases in determining whether there has been a breach of a Notice representation or warranty by the Buyer or any Seller for purposes of ClaimSection 10, or in determining the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation amount of any Losses with respect to a breach of a representation or warranty by the Buyer or any Seller for purposes of Section 10, such claimrepresentations and warranties shall be read without regard to any materiality qualifier (including, without limitation, any reference to Material Adverse Effect or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”)material adverse effect) contained therein; provided, however, that if, at the time a Notice of Claim is submitted this Section 10.4(d) shall not apply to the Indemnifying Party the amount of the Loss representations or warranties contained in respect thereof has not yet been determinedSection 5.7(a), such 20 day period in respect ofSection 5.20, but only in respect of the amount of the LossSection 5.21(a), shall not commence until a further written notice (the “Notice of Liability”) has been sent Section 5.21(k), Section 5.24, Section 6.10 or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartySection 6.11.
(ce) If The indemnification provided for in Section 10 shall survive any investigation at any time made by or on behalf of the Indemnifying Party fails to assume Indemnitee or any knowledge or information that the defense Indemnitee may have.
(f) All Losses recoverable by an Indemnitee shall be net of (i) insurance proceeds received by such Claim orIndemnitee or its Affiliates and (ii) any other amounts recovered and received by an Indemnitee or its Affiliates from a third party or the Fund, having assumed the defense and settlement whether by way of such Claimpayment, fails reasonably to contest such Claim in good faithdiscount, the Indemniteecredit, off-set, counterclaim, indemnification (including, without waiving its right limitation, indemnification by the Fund), contribution or otherwise, net of any costs incurred to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of pursue such Claimrecovery; provided, however, that (i) an Indemnitee shall have no obligation to seek recovery from insurance or any other indemnification, contribution or other payment. If any such insurance proceeds and/or other amounts are received by an Indemnitee or its Affiliates after the Indemnifying Party shall be permitted Indemnitor pays any amount pursuant to join in the defense and settlement of such Claim and to employ counsel at its own expensethis Section 10, (ii) the Indemnifying Party shall cooperate with the Indemnitee in shall promptly repay to the defense and settlement of Indemnitor the amount such Claim in any manner reasonably requested Indemnitor would not have had to pay pursuant to this Section 10 had such proceeds and/or other amounts been received by the Indemnitee and (iii) or its Affiliates prior to such Indemnitor’s payment under this Section 10 to the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationIndemnitee.
(dg) The Indemnifying Party Each party acknowledges and agrees that, except as provided in Section 7.5(d), Section 8.4(c) and Section 15.10 or in the case of fraud with scienter, its sole and exclusive remedy following the Closing with respect to any and all claims under or relating to this Agreement shall make be pursuant to the indemnification provisions set forth in this Section 10.
(h) No Indemnitee shall be entitled to double recovery for any payment required to be made under this Article in cash and on demand. Any payments required to be paid indemnifiable Loss by an Indemnifying Party under this Article that are not paid within five business days reason of the date on which state of facts giving rise to such obligation becomes final shall thereafter be deemed delinquentLoss, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, even though such Loss may have resulted from the date such payment becomes delinquent to the date breach of payment of such delinquent sums, which interest shall be considered to be Losses more than one of the Indemniteerepresentations, warranties and covenants, or any other indemnity, in this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (P10, Inc.)
Procedures for Indemnification. (a) If there occurs any Purchaser Indemnified Party or any Seller Indemnified Party (hereinafter an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice claim to have suffered a Loss (the other than with respect to any claim asserted, demand or other Action by any Person who is not a party to this Agreement (hereinafter a “Notice of Third-Party Claim”)) to for which indemnification is available under Section 7.02 or 7.03, as the other case may be, the Indemnified Party shall notify the party or parties obligated required to provide indemnification (the hereinafter an “Indemnifying Party”) in writing of such claim: (i) with respect to claims arising under Section 7.02(a)(i) or Section 7.03(a)(i), within the time periods provided in Section 7.01; and (ii) with respect to a Specified Indemnity Claim or a claim made pursuant to Section 7.03(a) (ii) hereof at any time after the Closing Date. The written notice to be delivered shall describe the nature of such claim, the facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the time such claim is made (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party). Providing In the Notice of Claim shall be a condition precedent to any Liability of event that within thirty (30) days after the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve receipt by the Indemnifying Party of its obligations hereunder but only if and to such a written notice from the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofIndemnified Party, the Indemnifying Indemnified Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice not have received from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect objection to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount claim shall be promptly paid over conclusively presumed and considered to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party have been assented to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted approved by the Indemnifying Party.
(cb) If within the thirty (30) day period described in Section 7.04(a) above, the Indemnified Party shall have received from the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of a written notice setting forth the Indemnifying Party’s objections to such claim and the Indemnifying Party’s reasons for such objection, then the parties shall negotiate in good faith for a period of ten (10) Business Days from the date the Indemnified Party receives such objection. After such ten (10) Business Day period (or such longer period as they may agree in writing), if the parties still cannot agree on the claim, the defense and settlement Indemnified Party may, at any time thereafter, until the expiration of such Claim; providedthe applicable statute of limitations with respect to its claim for indemnification, however, that (i) commence legal proceedings against the Indemnifying Party shall be permitted to join enforce its rights to indemnification from and against any Losses described in the defense and settlement of such Claim and to employ counsel at its own expense, (iiwritten notice described in Section 7.04(a) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationabove.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Procedures for Indemnification. If a party entitled to indemnification under this Section 9 (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice asserts that a party obligated to indemnify it under this Section 9 (the an “Notice of ClaimIndemnitor”) has become obligated to such Indemnitee pursuant to Section 9.2 or 9.3, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnitor may become obligated to an Indemnitee hereunder, such Indemnitee shall give written notice to the other party or parties obligated to provide indemnification (Indemnitor; provided, however, that the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability failure of the Indemnifying Party Indemnitee to give prompt notice to the Indemnitor shall not release the Indemnitor of its indemnification obligations hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and except to the extent the Indemnitor shall have been materially prejudiced by such failure. The Indemnitor may, but shall not be obligated to, upon prompt written notice to Indemnitee, assume the defense of such suit, action, investigation, claim or proceeding. If the Indemnitor furnishes such written notice, the Indemnitor shall have the sole power to direct and control the defense of any such suit, action, investigation, claim or proceeding. The Indemnitee shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Indemnitee’s choice. The Indemnitee shall make available all information and assistance that the Indemnitor may reasonably request and shall fully cooperate with the Indemnitor in such failure materially prejudices the Indemnifying Party hereunderdefense. In case any such action the event of a failure of the Indemnitee to provide cooperation as required under this Section 9.4, the Indemnitor’s obligation to indemnify the Indemnitee shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, reduced to the extent that it of the Losses with respect to which the Indemnitor’s ability to defend against the action, investigation, claim or proceeding underlying such indemnification obligation has been prejudiced by such failure. The Indemnitor shall wishnot compromise or settle any such suit, action, investigation, claim or proceeding unless (x) such compromise or settlement is on exclusively monetary terms and shall be paid entirely by the Indemnitor (subject to assume the defense thereofprovisions of Section 9.2(b)(i) and (ii) and 9.3(b)(i) and (ii), with counsel reasonably satisfactory which shall be controlling) and the Indemnitee receives an unconditional release in such compromise or settlement or (y) the Indemnitee shall have consented in writing to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee terms of such election so to assume the defense thereofcompromise or settlement, the Indemnifying Party which consent shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationunreasonably withheld; provided, however, that if the Indemnitee reasonably believes that counsel for fails to consent thereto, the Indemnifying Party canIndemnitor’s liability with respect to such matter, if any, shall not represent both exceed the Indemnitee and proposed settlement amount. If the Indemnifying Party because Indemnitor does not assume the defense of such representation would be reasonably likely to result in a conflict of interestsuit, then action, investigation, claim or proceeding, the Indemnitee shall have the right to defenddo so, at including, without limitation, the sole cost and expense of the Indemnifying Partyright to make any compromise or settlement thereof, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any eventwhich case, the Indemnitee shall be entitled to recover the entire cost thereof from the Indemnitor (to the extent constituting indemnifiable Losses under this Section 9) subject to the provisions of this Section 9, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such suit, action, investigation, claim or proceeding and that constitute indemnifiable Losses under this Section 9; provided that the Indemnitor shall have the right right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such asserted liabilitythe Indemnitor’s choice. No Indemnifying PartyNotwithstanding the foregoing provisions of this Section 9.4, in (i) if a Person brings a claim for patent infringement against Buyer, Level 3 and/or their Subsidiaries (the defense “Buyer Parties”) that alleges infringement liability of any of the Buyer Parties for both the period before Closing and the period after Closing, (A) the Buyer Parties and SAVVIS Parent, the Sellers and their Subsidiaries (the “Seller Parties”) will cooperate in defending such claim and (B) the Buyer Parties will not compromise or litigation, shall, except with settle such claim without the prior written consent of each IndemniteeSAVVIS, which consent to entry will not be unreasonably withheld, and (ii) if a Person brings a claim for patent infringement against any of the Seller Parties that alleges infringement liability of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability Seller Parties for both the period after Closing and the period before Closing, (A) the Seller Parties and the Buyer Parties will cooperate in respect to defending such claim and (B) the Seller Parties will not compromise or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for settle such Persons. In no event shall the Indemnifying Party, claim without the prior written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sumsLevel 3, which interest shall consent will not be considered to be Losses of the Indemniteeunreasonably withheld.
Appears in 1 contract
Sources: Purchase Agreement (SAVVIS, Inc.)
Procedures for Indemnification. (a) If there occurs an event that either The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”"Indemnified Party") that may be entitled to indemnity hereunder shall give prompt notice to any party obligated to give indemnity hereunder (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party to give the notice described in this Section 8.4(a) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but under this Article VIII only if and to the extent that such failure materially prejudices Indemnifying Party has been prejudiced by the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 10 days thereof) after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit or proceeding.
(b) The Parent shall have the obligation to assume the defense or settlement of any third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder. In case , provided that (i) the Seller Parties shall at all times have the right, at their option, to participate fully therein, and (ii) if the Parent does not proceed diligently to defend the third- party claim, suit, action or proceeding within 10 days after receipt of notice of such third-party claim, suit, action or proceeding, the Seller Parties shall have the right, but not the obligation, to undertake the defense of any such third-party claim, suit, action or proceeding.
(c) The Indemnifying Party shall not be brought against required to indemnify the Indemnified Party with respect to any Indemnitee and it shall provide amounts paid in settlement of any third- party suit, action, proceeding or investigation entered into without the written consent of the Indemnifying Party; provided, however, that if the Indemnified Party is a Notice Parent Indemnified Party, such third-party suit, action, proceeding or investigation may be settled without the consent of Claim the Indemnifying Party on 10 days' prior written notice to the Indemnifying Party if such third-party suit, action, proceeding or investigation is then unreasonably interfering with the business or operations of Buyer and the commencement thereofsettlement is commercially reasonable under the circumstances; and provided further, that if the Indemnifying Party shall be entitled to participate therein and, gives 10 days' prior written notice to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from Indemnified Party of a settlement offer which the Indemnifying Party desires to accept and to pay all Losses with respect thereto ("Settlement Notice") and the Indemnified Party fails or refuses to consent to such Indemnitee settlement within 10 days after delivery of the Settlement Notice to the Indemnified Party, and such election so to assume settlement otherwise complies with the defense thereofprovisions of this Section 8.4, the Indemnifying Party shall not be liable for Losses arising from such third-party suit, action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party will consent to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the IndemniteeIndemnified Party, settle if such judgment or settlement imposes any Claim on terms that provide for (i) a criminal sanction against obligation or liability upon the Indemnitee Indemnified Party other than the execution, delivery or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt approval thereof and customary releases of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation claims with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationmatter thereof.
(d) The Indemnifying Party parties shall make cooperate in defending any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentthird-party suit, action, proceeding or investigation, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of the Indemnified Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party shall pay in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the Indemnitee, immediately upon demand, interest at the rate purpose of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses enforcing any right of the Indemniteeindemnity granted to such Indemnified Party pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Group Maintenance America Corp)
Procedures for Indemnification. (a) If there occurs an event that either The procedures for indemnification shall be as follows:
A. The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, claiming the party seeking indemnification (the “Indemnitee”"Claimant") shall promptly provide give notice to the party from whom indemnification is claimed (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”)") of any claim, whether between the parties or brought by a third party , specifying (i) the factual basis for such claim, and (ii) the amount of the claim. Providing If the Notice of Claim claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
B. Following receipt of notice from the Claimant of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim, the Indemnifying Party shall be entitled have thirty (30) days to participate therein and, to make such investigation of the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such Indemnitee of such election so to assume the defense thereofnotice, the Indemnifying Party shall not be liable immediately pay to the Indemnitee hereunder for any legal expenses Claimant the full amount of other counsel the claim. If the Claimant and the Indemnifying party do not agree within said period (or any other expensesmutually agreed upon extension thereof) , in each case subsequently incurred the Claimant may seek appropriate legal remedy.
C. With respect to any claim by a third party as to which the IndemniteeClaimant is entitled to indemnification hereunder, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right at its own expense, to defend, at the sole cost and expense participate in or assume control of the Indemnifying Partydefense of such claim, such action by all appropriate proceedings. The Indemnitee agrees to reasonably and the Claimant shall cooperate fully with the Indemnifying Party and its counsel in party subject to reimbursement for reasonable actual out-of-pocket expenses, including reasonable attorneys fees, incurred by the Claimant as the result of a request by the Indemnifying party. If the Indemnifying party elects to assume control of the defense against of any such asserted liability. In any eventthird-party claim, the Indemnitee Claimant shall have the right to participate at its own expense in the defense of such asserted liability. No claim at its own expense.
D. If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
E. If the Indemnifying Party, Party does not elect to assume control or otherwise participate in the defense of any such claim or litigationthird party claim, shall, except it shall be bound by the results obtained in good faith by the Claimant with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay promptly reimburse Claimant for its defense costs including reasonable attorney's and other legal fees and the fees of consultants used in the defense of Claimant.
F. The indemnification rights provided in Sections 10.2 and 10.3 shall extend to the Indemniteeshareholders, immediately upon demanddirectors, interest at officers, partners employees and representatives, successors and assigns of the rate Claimant although for the purpose of 10% per annumthe procedures set forth in this Section 10.4, not to exceed the maximum nonusurious rate allowed any indemnification claims by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest parties shall be considered to be Losses of made by and through the IndemniteeClaimant.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by an Indemnified Party by delivery of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt written notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and such other information as such Indemnified Party shall have concerning such claim. If one of the commencement parties to this Agreement makes an Indemnification Claim, then the Indemnified Party shall provide such written notice to the Indemnifying Party as soon as practical after such Indemnified Party becomes aware of any fact, condition, or event which may give rise to Losses for which indemnification may be sought under this Section 10.
(b) The Indemnifying Party shall have thirty (30) days to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnified Party specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim by the Indemnifying Party and the Indemnification Claim shall be paid in accordance with subsection (c) hereof. If an objection is timely interposed by the Indemnifying Party and the dispute is not resolved by the Indemnified Party and the Indemnifying Party within fifteen (15) days from the date the Indemnified Party receives such objection, then either party may refer such dispute to a single arbiter agreed upon by the parties, or if no single arbiter can be agreed upon, then an arbiter or arbiters shall be selected in accordance with the rules of the American Arbitration Association and such dispute shall be settled by binding arbitration in accordance with the then prevailing commercial rules of the American Arbitration Association, and judgment upon the award rendered by the arbiter may be entered in any court having jurisdiction thereof.
(c) Upon determination of the amount of an Indemnification Claim, whether by agreement between Indemnifying Party and Indemnified Party or settled by binding arbitration, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party pay the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect Indemnification Claim within (10) days of the date such amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationdetermined.
(d) The Indemnifying Party shall make any payment required Subject to be made under this Article Seller's Limitation of Liability set forth in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentSection 10.7, and if the Indemnifying Party shall pay is Seller, then the payment of any such Indemnification Claim may be made to Purchaser by right of set-off against any of the Earn-Out Payments owed by Purchaser to Seller, as described above in Section 2.2, pursuant to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeprocedures set forth in Section 10.5(b).
Appears in 1 contract
Sources: Stock Purchase Agreement (Salona Global Medical Device Corp)
Procedures for Indemnification. To the extent that the Existing Partners are the Indemnitor under an Indemnification Claim arising pursuant to Section 11.3 above, amounts required to be paid in respect of such Indemnification Claim will be paid to the Post-Amendment Partnership. If within thirty (30) days after the date on which written notice of an Indemnification Claim arising pursuant to Section 11.3(ii) above has been given, the Indemnitor shall acknowledge in writing to the Indemnitee and without qualification its indemnification obligations as provided in Section 11.3(ii); then, except as hereinafter provided, the Indemnitee shall not, and the Indemnitor shall, have the right to (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 contest, defend, litigate or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of settle such Indemnification Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and (b) assert any counter-claim or cross-claim or otherwise exercise any rights the failure Existing Partners or Partnership may have directly related to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Indemnification Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wishhas made a payment to Indemnitee pursuant to its indemnification obligations in respect of such Indemnification Claim, to assume the defense thereofretain any judgments, with counsel reasonably satisfactory to such Indemnitee andawards, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of settlements or other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, benefits procured in connection with any such action ((a) and (b) collectively, “Defend the defense thereof other than reasonable costs of investigation; provided, however, that if Claim”) and the Indemnitee reasonably believes that counsel for shall cooperate with the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result Indemnitor in a conflict of interestconnection therewith, then the at Indemnitor’s expense. The Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action be represented by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in any such contest, defense, litigation or settlement conducted by the defense of Indemnitor provided that the Indemnitee shall be entitled to reimbursement therefor if the Indemnitor shall lose its right to contest, defend, litigate and settle such asserted liabilityIndemnification Claim as herein provided. No Indemnifying PartyThe Indemnitor shall lose its right to Defend the Claim if it shall fail to diligently contest, defend, litigate or settle, in its sole and reasonable discretion, the defense Indemnification Claim. So long as the Indemnitor has not lost its right and/or obligation to Defend the Claim as herein provided, the Indemnitor shall have the exclusive right to Defend the Claim and shall have the exclusive right, in its discretion exercised in good faith, and upon the advice of counsel, to settle any such claim matter, either before or after the initiation of litigation, shallat such time and upon such terms as it deems fair and reasonable, except provided that at least ten (10) days prior to any such settlement, written notice of its intention to settle shall be given to the Indemnitee, and provided that as to any such Indemnification Claim that is material, the Indemnitor will provide such information as Indemnitee may from time to time reasonably request in connection therewith, consult with Indemnitee as to the contest, litigation and settlement relating to such Indemnification Claim, and in good faith take into account Indemnitee’s advice and input in connection therewith. All expenses (including without limitation attorneys’ fees) incurred by the Indemnitor in connection with the written consent of each Indemniteeforegoing shall be paid by the Indemnitor. Notwithstanding the foregoing, consent in connection with any settlement negotiated by an Indemnitor, no Indemnitee shall be required by an Indemnitor to entry of any judgment or (x) enter into any settlement that does not include as an unconditional term thereof the release of delivery by the claimant or plaintiff to the Indemnitee of a release from all Liability liability in respect to of such claim or litigation or litigation, (y) enter into any settlement that does not solely require the payment of money damages attributes by the Indemnifying Person. The Indemnifying Party agrees its terms liability to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (iiz) injunctive relief affecting consent to the Indemnitee.
(bentry of any judgment that does not include as a term thereof a full dismissal of the litigation or proceeding with prejudice. No failure by an Indemnitor to acknowledge in writing its indemnification obligations Section 11.3(ii) Upon receipt shall relieve it of such obligations to the extent they exist. If an Indemnitee is entitled to indemnification against such an Indemnification Claim, and the Indemnitor fails to accept a tender of, or assume, the defense of a Notice of Indemnification Claim pursuant to its obligation under Section 11.3(ii), or if, in accordance with the foregoing, the Indemnitor shall lose its right to Defend the Claim, the Indemnifying Party Indemnitee shall have 20 calendar days (the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in good faith and upon the advice of counsel, to Defend the Claim, and may settle such Indemnification Claim, either before or such shorter period as may be appropriate under after the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that ifinitiation of litigation, at the such time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, and upon such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due terms as the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, deems fair and reasonable, provided that at least ten (10) days prior to any such settlement, written notice of its intention to settle is given to the IndemniteeIndemnitor. If, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Partypursuant hereto, the defense and settlement of Indemnitee so contests, defends, litigates or settles such an Indemnification Claim; , for which it is entitled to indemnification hereunder as hereinabove provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle be reimbursed by the Indemnitor for the Indemnification Claim, including reasonable attorneys’ fees and other expenses of defending, contesting, litigating and/or settling such Indemnification Claim without soliciting which are incurred from time to time, forthwith following the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay presentation to the Indemnitee, immediately upon demand, interest at the rate Indemnitor of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeitemized bills for said attorneys’ fees and other expenses.
Appears in 1 contract
Sources: Contribution Agreement (Strategic Hotel Capital Inc)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 Whenever a claim shall arise for indemnification under Sections 11.1(a) or 5.211.1(b), the party seeking Person entitled to indemnification (the “Indemnitee”) shall promptly provide notice notify the Party from which indemnification is sought (the “Notice of ClaimIndemnitor”) of such claim and, when known, the facts constituting the basis for such claim; provided, that after receipt by an Indemnitee of written notice of the assertion or the commencement of any Litigation by a third party with respect to any matter referred to in Sections 11.1(a) or 11.1(b), the Indemnitee shall give prompt written notice thereof to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim Indemnitor, which notice shall be include a condition precedent to any Liability description of the Indemnifying Party hereunderclaim or Litigation, the amount thereof (if known and quantifiable) and the basis for the claim or Litigation, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; provided, further, that failure of the Indemnitee to provide prompt give the Indemnitor notice as provided herein will shall not relieve the Indemnifying Party Indemnitor of its obligations hereunder but only if and except to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party Indemnitor is prejudiced thereby.
(b) Any Indemnitor shall be entitled to participate therein andin the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee's claim for indemnification at such Indemnitor's expense, and at its option (subject to the extent that it limitations set forth below) shall wish, be entitled to assume the defense thereof, with thereof by appointing a nationally recognized and reputable counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable acceptable to the Indemnitee hereunder for any legal expenses of other to be the lead counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationsuch defense; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then that:
(i) the Indemnitee shall have the right be entitled to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel participate in the defense against of such claim and to employ counsel of its choice for such purpose; provided, that the fees and expenses of such separate counsel shall be borne by the Indemnitee;
(ii) if the Indemnitor shall control the defense of any such asserted liability. In any eventclaim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all Liabilities with respect to such claim, without prejudice;
(iii) the Indemnitor has not failed or is not failing to use reasonable efforts to defend such claim or with respect to such Litigation; and
(iv) notwithstanding the foregoing, (A) the Seller shall have control over the resolution of all Liabilities specified in Section 1.5(b) but shall allow the Buyer to control communications related thereto with any ongoing customer of the Business; provided, that the Buyer shall keep the Seller apprised of the content of any such communications with such customer and the Seller shall have the right to participate at its own expense in any such communications; and (B) the defense Seller shall consult with the Buyer, and shall take under advisement and consider in good faith input from the Buyer, regarding the resolution of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeLiabilities.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Purchase Agreement (Momentive Specialty Chemicals Inc.)
Procedures for Indemnification. (a) 9.4.1. If there occurs an event any Indemnified Party determines in good faith that either party asserts it is an indemnifiable event entitled to indemnification pursuant to this Section 5.1 or 5.29 and such Indemnified Party desires to seek an indemnification claim hereunder, the party seeking indemnification Indemnified Party shall give to the Indemnifying Party and the Escrow Agent a written notice with respect thereto (the “Indemnitee”) shall promptly provide notice (the a “Notice of Claim”) setting forth in reasonable detail the basis for such claim, and specifying the amount of Losses claimed (which, if not finally determined, may be a good faith estimate thereof) (the amount of Losses so claimed being hereinafter referred to as the “Indemnity Claim Amount”).
9.4.2. The Indemnifying Party may, within 15 days after receipt of any Notice of Claim, object to such Notice of Claim and dispute the claim in full or any Indemnity Claim Amount set forth in such Notice of Claim by delivery to the other party or parties obligated to provide indemnification Indemnified Party and the Escrow Agent of written notice of such dispute (the a “Indemnifying PartyDispute Notice”). Providing , setting forth in reasonable detail the basis for such dispute and the amount of the Indemnity Claim Amount which the Indemnifying Party objects to being claimed by the Indemnified Party in respect of the Notice of Claim shall be Claim.
9.4.3. If the Indemnified Party does not receive a condition precedent Dispute Notice that relates to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to within fifteen (15) days after the Indemnifying Indemnified Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to delivers such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period Escrow Agent will disburse to Purchaser, on behalf of all the Indemnified Parties, from the Escrow Consideration Shares a number of shares with a value, based on the Average Share Price as may be appropriate under of the circumstances) to contest its indemnification obligation with respect to such claimdate of disbursement, or the amount thereof, by written notice equal to the Indemnitee Indemnity Claim Amount specified in such Notice of Claim within three (3) Business Days after the “Contest Notice”); provided, however, expiration of such 15-day period. If the Indemnified Party and the Escrow Agent receive a Dispute Notice that if, at the time relates to a Notice of Claim is submitted to within fifteen (15) days after receipt of such Notice of Claim, the Indemnifying Party the amount of the Loss in respect thereof has not yet been determinedEscrow Agent (A) will, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier such Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection , disburse to Purchaser, on behalf of the Indemnifying Party Indemnified Parties, from the Escrow Consideration Shares a number of Consideration Shares with a value, based on the Average Share Price as of the date of disbursement, equal to the claim, and if the objection relates to the amount of the Loss asserted, the amountportion, if any, that of the Indemnity Claim Amount specified in such Notice of Claim which is not objected to in such Dispute Notice within three Business Days after the receipt of such Dispute Notice, and (B) will not disburse to Purchaser from the Escrow Consideration Shares, any shares in respect of such portion of the Indemnity Claim Amount which is objected to in such Dispute Notice unless it has received either a joint notice of release signed by the Indemnifying Party believes is due and the IndemniteePurchaser directing the Escrow Agent to deliver Escrow Consideration Shares with a value, and based on the Average Share Price as of the date of delivery of such Escrow Consideration Shares, equal to all or any undisputed amount shall be promptly paid over portion of such funds, which joint notice the parties agree to deliver to the Indemnitee. If no Escrow Agent promptly following resolution of such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice a final order by a court of Liabilitycompetent jurisdiction or an arbitral award, which order or award is not subject to appeal (a “Purchaser Final Order”), directing the Escrow Agent to disburse to Purchaser, on behalf of all the Indemnified Parties, from the Escrow Consideration Shares, shares with a value, based on the Average Share Price as of the date of delivery of such Escrow Consideration Shares, equal to an amount set forth in such Purchaser Final Order.
9.4.4. In the event that under the terms of the Escrow Agreement any Escrow Consideration Shares are due to be released from escrow while any dispute under Section 9.4.4 is pending, the number of Escrow Consideration Shares to be released from escrow shall be deemed established reduced by a number of Escrow Consideration Shares with a value, based on the Average Share Price as of the date of release, equal to all Indemnity Claim Amounts pending at such time that are either subject to dispute or due to be disbursed to the Purchaser.
9.4.5. If it has been determined that any Indemnified Party is due Escrow Consideration Shares pursuant to Sections 9.2 and accepted by 9.4 hereof, the Indemnifying Party.
Party may elect to pay the value of the applicable Indemnity Claim Amount (cor portion thereof) in immediately available funds (in U.S. dollars) by wire transfer no later than the date on which release of the Escrow Consideration Shares for such Indemnity Claim Amount (or portion thereof) is required. The Indemnifying Party shall provide Purchaser and the Escrow Agent notice of its election to pay cash no later than five (5) days prior to the date on which release of Escrow Consideration Shares is due. If the Indemnifying Party fails to assume the defense breaches its obligation and does not make cash payment of such amount on the date so scheduled, Escrow Consideration Shares for the applicable Indemnity Claim or, having assumed Amount (or portion thereof) shall be released to Purchaser on the defense next day in accordance with the provisions of Section 9.
9.4.6. Prolink Amount Shares will be held in escrow only for the purposes described in this Section 9.4.6 and settlement of shall not serve for indemnification for any other matter under Section 9.2.1. At such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost time that USDATA or USDATA Sub pays any portion of the Indemnifying Party, the defense Prolink Amount in accordance with and settlement of at such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested time required by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article Prolink Agreement, Prolink Amount Shares in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay amount equal to the Indemnitee, immediately upon demand, interest at amount so paid divided by the rate Average Share Price as of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment shall be released from escrow to USDATA. In the event that any Prolink Amount due to be paid to Prolink is not paid by USDATA or USDATA Sub to Prolink as required under the Prolink Agreement, Prolink Amount Shares in an amount equal to the amount so defaulted, based on the Average Share Price as of the date of default will be disbursed to Purchaser. Notwithstanding anything to the contrary, the Prolink Amount Shares shall not be released to USDATA or Purchaser other than in accordance with this Section 9.4.6 and Section 9.4.7. In the event that the Prolink Amount Shares are not sufficient to indemnify Purchaser for any default in payment of the Prolink Amount then any excess damages shall be deemed to be an Excluded Liability. Notwithstanding anything to the contrary set forth herein, when the Prolink Amount has been paid in full by USDATA or any Affiliate of USDATA and written evidence of such delinquent sumspayment has been provide to the Escrow Agent and the Purchaser, all Prolink Amount Shares remaining in escrow shall be released to USDATA.
9.4.7. At any time as USDATA or USDATA Sub pays a portion of the Prolink Amount in accordance with and at such time required by the Prolink Agreement, it shall provide the Escrow Agent and the Purchaser with written notice with respect thereto which notice shall be deemed a Notice of Claim under Section 9.4.1. Purchaser may, within 15 days after receipt of any such notice, dispute such notice and give to USDATA and the Escrow Agent a written notice with respect thereto which notice shall be deemed a Dispute Notice under Section 9.4.2. In addition, Purchaser may also provide the Seller and the Escrow Agent a written notice at any time requesting that Prolink Amount Shares be disbursed to the Purchaser in accordance with Section 9.4.6 above, if Purchaser determines in good faith that USDATA or USDATA Sub is in default under the Prolink Agreement, which interest notice shall be considered deemed a Notice of Claim under Section 9.4.1. and USDATA may, within 15 days after receipt of any such notice, dispute such notice and give to the Purchaser and the Escrow Agent a written notice with respect thereto which notice shall be Losses of deemed a Dispute Notice under Section 9.4.2. All such notices and disputes with respect to the IndemniteeProlink Amount Shares shall be dealt with in the same manner provided for in Section 9.4.1 through 9.4.4, mutatis mutandis.
Appears in 1 contract
Sources: Asset Purchase Agreement (USDATA Liquidating Trust)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification The respective obligations and liabilities of Seller and Purchaser (the “Indemnitee”) shall promptly provide notice (the “Notice of Claimindemnifying party”) to the other party or parties obligated to provide indemnification (the “Indemnifying Partyparty to be indemnified”). Providing ) under Sections 5.1 and 5.2 hereof with respect to claims resulting from the Notice assertion of Claim liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party’s position) after receipt of notice of commencement of any legal action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a condition precedent third party, the party to any Liability be indemnified shall give the indemnifying party written notice thereof together with a copy of the Indemnifying Party hereundersuch claim, process or other legal pleading, and the failure indemnifying party shall have the right to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with undertake the defense thereof other than reasonable costs by representatives of investigationits own choosing (but subject to the approval of the indemnified party which approval will not be unreasonably withheld or delayed) and at its own expense; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would party to be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel indemnified may participate in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate with counsel of its own choice and at its own expense in and, provided further, that the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release failure of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity party to be present at, indemnified to give timely notice shall not affect the right to indemnification hereunder except to the extent (and then only to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for extent) the indemnifying party proves actual damages caused by such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteefailure.
(b) Upon In the event that the indemnifying party, by the 30th day after receipt of a Notice notice of Claimany such claim (or, if earlier, by the Indemnifying Party shall have 20 calendar days (10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such shorter period as may be appropriate under the circumstances) claim), does not elect to contest its indemnification obligation with respect to defend against such claim, or the amount thereof, by written party to be indemnified will (upon further notice to the Indemnitee (indemnifying party) have the “Contest Notice”); providedright to undertake the defense, however, that if, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the time a Notice of Claim is submitted indemnifying party’s expense, subject to the Indemnifying Party the amount right of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails indemnifying party to assume the defense of such Claim orclaims in accordance with this Section 5.3(b) at any time prior to settlement, having assumed compromise or final determination thereof.
(c) Anything in this Section to the defense and settlement of such Claim, fails reasonably to contest such Claim in good faithcontrary notwithstanding, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee indemnifying party shall not settle such Claim any claim without soliciting the views consent of the Indemnifying Party party to be indemnified unless such settlement involves only the payment of money and giving them due considerationthe claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The Indemnifying Party shall make any payment required party to be made under this Article in cash indemnified and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days the indemnifying party will each cooperate with all reasonable requests of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeother.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hyperfeed Technologies Inc)
Procedures for Indemnification. Promptly after receipt by a party entitled to indemnification hereunder (athe "Indemnitee") If there occurs an event that either of written notice of the assertion or the commencement of any Proceeding by a third-party asserts is an indemnifiable event pursuant with respect to Section 5.1 any matter referred to in Sections 9.2 or 5.29.3, the Indemnitee shall give written notice thereof to the party seeking indemnification obligated to indemnify Indemnitee (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”"Indemnitor"). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and thereafter shall keep the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, Indemnitor reasonably informed with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationrespect thereto; provided, however, that if failure of the Indemnitee reasonably believes to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent that counsel the Indemnitor is prejudiced thereby. A claim for indemnification (a "Claim") for any matter not involving a third-party Proceeding may be asserted by notice to the Indemnifying Party cannot represent both party from whom indemnification is sought and shall be paid promptly after such notice, unless the Indemnitor in good faith disputes the Claim, in which event such Indemnitor shall so notify the Indemnitee and the Indemnifying Party because such representation would shall only be reasonably likely obligated to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party pay the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice Damages for which it is liable hereunder within ten (the “Notice of Liability”10) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and days following any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense final determination of such Claim or, having assumed Damages and the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that Indemnitor' s liability therefor. A "final determination" shall exist when (i) the Indemnifying Party shall be permitted parties to join the dispute have reached an agreement in the defense and settlement of such Claim and to employ counsel at its own expensewriting, (ii) the Indemnifying Party a court of competent jurisdiction shall cooperate with the Indemnitee in the defense have entered a final and settlement of such Claim in any manner reasonably requested by the Indemnitee and non-appealable order or judgment, or (iii) an arbitration or like panel shall have rendered a final non-appealable determination with respect to disputes the Indemnitee parties have agreed to submit thereto. A final determination in favor of Purchaser shall not settle such Claim without soliciting result in the views award of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the prevailing legal rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to of Seller' s receipt of Purchaser' s notice through the date of Seller' s payment to Purchaser. The prevailing party in any dispute arising out of such delinquent sums, which interest a Claim shall be considered to be Losses of the Indemniteereimbursed all reasonable costs, including reasonable attorneys' fees.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts any action, suit or proceeding ------------------------------ shall be commenced against, or any claim or demand be asserted against, Seller or Buyer, as the case may be, in respect of which Seller or Buyer is an indemnifiable event pursuant entitled to demand indemnification under Section 5.1 or 5.210 of this Agreement, then as a condition precedent thereto, the party seeking indemnification (the “"Indemnitee”") shall promptly provide notice (the “Notice of Claim”) to notify the other party or parties obligated ("Indemnitor") in writing to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunderthat effect, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if with reasonable particularity and with reference to the extent that such failure materially prejudices the Indemnifying Party hereunderapplicable provision(s) of this Agreement. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee The Indemnitor shall have the right to defend, at assume the sole cost and expense entire control of the Indemnifying Partydefense, compromise or settlement of such action by all appropriate proceedings. The action, suit, proceeding or claim and including the selection of counsel, subject to the right of the Indemnitee agrees to reasonably cooperate participate (at its expense and with the Indemnifying Party and counsel of its counsel choice) in the defense against any defense, compromise or settlement of such asserted liability. In any eventaction, suit, proceeding, claim or demand, and in connection therewith, the Indemnitee shall have cooperate fully in all respects with the right to participate at its own expense Indemnitor in the defense of such asserted liability. No Indemnifying Party, in the defense of any such defense, compromise or settlement. The Indemnitor will not compromise or settle any such action, suit, proceeding, claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, demand without the prior written consent of the Indemnitee, settle which consent will not be unreasonably withheld or delayed. So long as the Indemnitor is defending in good faith any Claim on terms that provide for (i) such action, suit, proceeding, claim or demand asserted by a criminal sanction third party against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle or compromise such Claim action, suit, proceeding, claim or demand without soliciting the views prior written consent of the Indemnifying Party and giving them due consideration.
(d) Indemnitor, which consent will not be unreasonably withheld or delayed. The Indemnifying Party Indemnitee shall make available to the Indemnitor or its agents all records and other materials in the Indemnitee's possession reasonably required for contesting any payment required to be made under this Article in cash and on third party claim or demand. Any payments required If the Indemnitor shall fail to be paid by an Indemnifying Party under this Article that are not paid within five business days promptly and adequately defend any such action, suit, proceeding, claim or demand, then the Indemnitee may defend, through counsel of its own choosing, such action, suit, proceeding, claim or demand and (so long as Indemnitee gives the Indemnitor at least ten (10) days' notice of the date on which such obligation becomes final shall thereafter be deemed delinquent, terms of the proposed settlement thereof and permits the Indemnifying Party shall pay Indemnitor to then undertake the defense thereof if Indemnitor objects to the Indemniteeproposed settlement) to settle such action, immediately upon demandsuit, interest at the rate of 10% per annumproceeding, not claim or demand and to exceed the maximum nonusurious rate allowed by applicable Law, recover from the date such payment becomes delinquent to Indemnitor the date of payment amount of such delinquent sums, which interest shall be considered to be Losses of the IndemniteeLosses.
Appears in 1 contract
Procedures for Indemnification. (a) 9.4.1. If there occurs an event any Indemnified Party determines in good faith that either party asserts it is an indemnifiable event entitled to indemnification pursuant to this Section 5.1 or 5.29 and such Indemnified Party desires to seek an indemnification claim hereunder, the party seeking indemnification Indemnified Party shall give to the Indemnifying Party and the Escrow Agent a written notice with respect thereto (a "NOTICE OF CLAIM") setting forth in reasonable detail the basis for such claim, and specifying the amount of Losses claimed (which, if not finally determined, may be a good faith estimate thereof) (the “Indemnitee”) shall promptly provide notice (amount of Losses so claimed being hereinafter referred to as the “"INDEMNITY CLAIM AMOUNT").
9.4.2. The Indemnifying Party may, within 15 days after receipt of any Notice of Claim”) , object to such Notice of Claim and dispute the claim in full or any Indemnity Claim Amount set forth in such Notice of Claim by delivery to the other party or parties obligated Indemnified Party and the Escrow Agent of written notice of such dispute (a "DISPUTE NOTICE"), setting forth in reasonable detail the basis for such dispute and the amount of the Indemnity Claim Amount which the Indemnifying Party objects to provide indemnification (being claimed by the “Indemnifying Party”). Providing Indemnified Party in respect of the Notice of Claim shall be Claim.
9.4.3. If the Indemnified Party does not receive a condition precedent Dispute Notice that relates to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to within fifteen (15) days after the Indemnifying Indemnified Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to delivers such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period Escrow Agent will disburse to Purchaser, on behalf of all the Indemnified Parties, from the Escrow Consideration Shares a number of shares with a value, based on the Average Share Price as may be appropriate under of the circumstances) to contest its indemnification obligation with respect to such claimdate of disbursement, or the amount thereof, by written notice equal to the Indemnitee Indemnity Claim Amount specified in such Notice of Claim within three (3) Business Days after the “Contest Notice”); provided, however, expiration of such 15-day period. If the Indemnified Party and the Escrow Agent receive a Dispute Notice that if, at the time relates to a Notice of Claim is submitted to within fifteen (15) days after receipt of such Notice of Claim, the Indemnifying Party the amount of the Loss in respect thereof has not yet been determinedEscrow Agent (A) will, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier such Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection , disburse to Purchaser, on behalf of the Indemnifying Party Indemnified Parties, from the Escrow Consideration Shares a number of Consideration Shares with a value, based on the Average Share Price as of the date of disbursement, equal to the claim, and if the objection relates to the amount of the Loss asserted, the amountportion, if any, that of the Indemnity Claim Amount specified in such Notice of Claim which is not objected to in such Dispute Notice within three Business Days after the receipt of such Dispute Notice, and (B) will not disburse to Purchaser from the Escrow Consideration Shares, any shares in respect of such portion of the Indemnity Claim Amount which is objected to in such Dispute Notice unless it has received either a joint notice of release signed by the Indemnifying Party believes is due and the IndemniteePurchaser directing the Escrow Agent to deliver Escrow Consideration Shares with a value, and based on the Average Share Price as of the date of delivery of such Escrow Consideration Shares, equal to all or any undisputed amount shall be promptly paid over portion of such funds, which joint notice the parties agree to deliver to the Indemnitee. If no Escrow Agent promptly following resolution of such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice a final order by a court of Liabilitycompetent jurisdiction or an arbitral award, which order or award is not subject to appeal (a "PURCHASER FINAL Order"), directing the Escrow Agent to disburse to Purchaser, on behalf of all the Indemnified Parties, from the Escrow Consideration Shares, shares with a value, based on the Average Share Price as of the date of delivery of such Escrow Consideration Shares, equal to an amount set forth in such Purchaser Final Order.
9.4.4. In the event that under the terms of the Escrow Agreement any Escrow Consideration Shares are due to be released from escrow while any dispute under Section 9.4.4 is pending, the number of Escrow Consideration Shares to be released from escrow shall be deemed established reduced by a number of Escrow Consideration Shares with a value, based on the Average Share Price as of the date of release, equal to all Indemnity Claim Amounts pending at such time that are either subject to dispute or due to be disbursed to the Purchaser.
9.4.5. If it has been determined that any Indemnified Party is due Escrow Consideration Shares pursuant to Sections 9.2 and accepted by 9.4 hereof, the Indemnifying Party.
Party may elect to pay the value of the applicable Indemnity Claim Amount (cor portion thereof) in immediately available funds (in U.S. dollars) by wire transfer no later than the date on which release of the Escrow Consideration Shares for such Indemnity Claim Amount (or portion thereof) is required. The Indemnifying Party shall provide Purchaser and the Escrow Agent notice of its election to pay cash no later than five (5) days prior to the date on which release of Escrow Consideration Shares is due. If the Indemnifying Party fails to assume the defense breaches its obligation and does not make cash payment of such amount on the date so scheduled, Escrow Consideration Shares for the applicable Indemnity Claim or, having assumed Amount (or portion thereof) shall be released to Purchaser on the defense next day in accordance with the provisions of Section 9.
9.4.6. Prolink Amount Shares will be held in escrow only for the purposes described in this Section 9.4.6 and settlement of shall not serve for indemnification for any other matter under Section 9.
2.1. At such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost time that USDATA or USDATA Sub pays any portion of the Indemnifying Party, the defense Prolink Amount in accordance with and settlement of at such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested time required by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article Prolink Agreement, Prolink Amount Shares in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay amount equal to the Indemnitee, immediately upon demand, interest at amount so paid divided by the rate Average Share Price as of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment shall be released from escrow to USDATA. In the event that any Prolink Amount due to be paid to Prolink is not paid by USDATA or USDATA Sub to Prolink as required under the Prolink Agreement, Prolink Amount Shares in an amount equal to the amount so defaulted, based on the Average Share Price as of the date of default will be disbursed to Purchaser. Notwithstanding anything to the contrary, the Prolink Amount Shares shall not be released to USDATA or Purchaser other than in accordance with this Section 9.4.6 and Section 9.4.7. In the event that the Prolink Amount Shares are not sufficient to indemnify Purchaser for any default in payment of the Prolink Amount then any excess damages shall be deemed to be an Excluded Liability. Notwithstanding anything to the contrary set forth herein, when the Prolink Amount has been paid in full by USDATA or any Affiliate of USDATA and written evidence of such delinquent sumspayment has been provide to the Escrow Agent and the Purchaser, all Prolink Amount Shares remaining in escrow shall be released to USDATA.
9.4.7. At any time as USDATA or USDATA Sub pays a portion of the Prolink Amount in accordance with and at such time required by the Prolink Agreement, it shall provide the Escrow Agent and the Purchaser with written notice with respect thereto which notice shall be deemed a Notice of Claim under Section 9.4.1. Purchaser may, within 15 days after receipt of any such notice, dispute such notice and give to USDATA and the Escrow Agent a written notice with respect thereto which notice shall be deemed a Dispute Notice under Section 9.4.2. In addition, Purchaser may also provide the Seller and the Escrow Agent a written notice at any time requesting that Prolink Amount Shares be disbursed to the Purchaser in accordance with Section 9.4.6 above, if Purchaser determines in good faith that USDATA or USDATA Sub is in default under the Prolink Agreement, which interest notice shall be considered deemed a Notice of Claim under Section 9.4.1. and USDATA may, within 15 days after receipt of any such notice, dispute such notice and give to the Purchaser and the Escrow Agent a written notice with respect thereto which notice shall be Losses of the Indemniteedeemed a Dispute Notice under Section 9.4.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tecnomatix Technologies LTD)
Procedures for Indemnification. (ai) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by an Indemnitee by delivery of a condition precedent written notice to any Liability of the Indemnifying Party hereunder, Indemnitor requesting indemnification and specifying in reasonable detail the basis on which indemnification is sought and the failure to provide prompt notice amount of asserted Losses and, in the case of a Third Party Claim, containing (by attachment or otherwise) such other information as provided herein will relieve such Indemnitee shall have concerning such Third Party Claim.
(ii) If the Indemnifying Indemnification Claim involves a Third Party of its obligations hereunder but only if and to Claim the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action procedures set forth in ss.8(d) hereof shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred observed by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Indemnitor.
(iii) If the Indemnification Claim involves a matter other than a Third Party because Claim, the Indemnitor shall have thirty (30) days to object to such representation would be reasonably likely Indemnification Claim by delivery of a written notice of such objection specifying in reasonable detail the basis for such objection. Failure to result so object in a conflict timely manner shall constitute a final and binding acceptance of interestthe Indemnification Claim by the Indemnitor, and the Indemnification Claim shall be paid in accordance with subsection (d) hereof as a Finally Determined Claim (as that term is defined below). If an objection is timely interposed by the Indemnitor, then the Indemnitee shall have the right to defend, at the sole cost Indemnitor and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have negotiate in good faith for a period of sixty (60) business days from the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of date the Indemnitee from all Liability in respect receives such objection prior to such claim commencing any formal legal action, suit or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation proceeding with respect to such claim, or the amount thereof, by written notice to the Indemnitee Indemnification Claim.
(the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect iv) Upon final determination of the amount of an Indemnification Claim, whether by agreement between the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by Indemnitor and the Indemnitee to or by an arbitration award or other adjudication, including the Indemnifying Party setting forth taking of all relevant appeals (a "Final Determination"), the Indemnitor shall pay the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of such Indemnification Claim (a "Finally Determined Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given ") within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
ten (c10) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and Final Determination. Any Spectra Shares then held by the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest Escrow Agent shall be considered to be Losses available for, but shall not limit, the discharge of the Indemniteeobligations of the Seller as an Indemnitor hereunder in accordance with the provisions of the Escrow Agreement.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Spectra Systems Corp)
Procedures for Indemnification. (a) If there occurs an event that either party asserts a claim for Damages is an indemnifiable event to be made by any of the NETGEAR Indemnified Parties or any of the Infrant Indemnified Parties pursuant to Section 5.1 or 5.2, the party seeking indemnification this Article XI (the “IndemniteeIndemnified Party”) shall promptly provide ), the Indemnified Party agrees to give written notice (the “Notice of Claim”) to the other party Holders or parties obligated to provide indemnification NETGEAR and Merger Sub, as applicable, (the “Indemnifying PartyParties”) promptly and in any event not later than sixty (60) days after the date the Indemnified Party shall first become aware of such claim of the assertion of any fact, condition, event, claim, action or proceeding that may give rise to Damages in respect of which indemnity may be sought under this Article XI (a “Claim”). Providing ; provided that the Notice failure to give such prompt notice shall not affect the rights of Claim shall be a condition precedent the Indemnified Party except to any Liability of the extent the Indemnifying Party hereunderis actually prejudiced by such failure. The notice shall state in reasonable detail the information then available regarding the amount and nature of the Claim and shall specify the provision or provisions of this Agreement under which the Claim is asserted. The Indemnifying Party shall be deemed to have accepted the notice of the Claim and to have agreed to pay the Damages at issue if such Indemnifying Party does not send a notice of disagreement to the Indemnified Party within sixty (60) calendar days after receiving notice of the Claim. In the case of a disputed Claim, the parties shall use their reasonable best efforts to resolve the matter internally on an expeditious basis and the failure to provide prompt in any event within forty-five (45) calendar days after notice as provided herein will relieve is received by the Indemnifying Party of its obligations hereunder but only if and Party. If after such forty-five (45) calendar day period has passed, the parties have not mutually resolved the matter, then the Indemnified Parties may initiate legal proceedings with respect to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case Claim.
(b) If any such lawsuit or enforcement action is filed against any Indemnified Party, written notice thereof shall be brought against any Indemnitee and it shall provide a Notice of Claim given to the Indemnifying Party as promptly as practicable (and in any event no later than the earlier of (i) ten (10) calendar days after the service of the commencement thereofcitation or summons and (ii) sixty (60) days after the Indemnified Party shall first become aware of the filing of such suit or action); provided that the failure to give such notice shall not affect the rights of the Indemnified Party except to the extent the Indemnifying Party is actually prejudiced by such failure. After such notice, provided that the Indemnifying Party acknowledges in writing, based on the information then available to the Indemnified Party that the Indemnifying Party shall be entitled to participate therein andobligated under the terms of its indemnity hereunder in connection with such lawsuit or action, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, then the Indemnifying Party shall not be liable entitled, if it so elects, by written notice to the Indemnitee hereunder Indemnified Party given within fifteen (15) calendar days after the date of notice of the claim from the Indemnified Party pursuant to the first sentence of this paragraph (b), at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action (except with respect to any claims for any legal expenses of other counsel or any other expensesequitable relief, in each case subsequently incurred by provided that the Indemnitee, Indemnified Party shall consult with the Indemnifying Party in connection with any such proceeding), (ii) to employ and engage attorneys of its own choice to handle and defend the same, unless the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, in which event the Indemnified Party shall be entitled, at the Indemnifying Party’s cost, risk and expense, to engage separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld (it being agreed that it shall be reasonable to withhold such consent if such compromise or settlement does not include a complete release of the Indemnified Party from all liability with respect thereto, or imposes any liability on the Indemnified Party). The Indemnified Party shall cooperate at the expense of the Indemnifying Party in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense thereof other than reasonable costs of investigationsuch lawsuit or action and any appeal arising therefrom; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Indemnified Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interestmay, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense cost, participate in the investigation, trial and defense of such asserted liability. No Indemnifying Party, in the defense of any such claim lawsuit or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, action and any undisputed amount shall be promptly paid over to the Indemniteeappeal arising therefrom. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim orclaim within fifteen (15) calendar days after the notice of the claim referred to in the first sentence of this paragraph (b), having assumed the defense Indemnified Party against which such claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost, risk and expense, the defense, compromise or settlement of such Claim, fails reasonably to contest such Claim in good faithclaim. If the Indemnified Party assumes the defense of the claim, the Indemnitee, without waiving its right to indemnification, may assume, at Indemnified Party will keep the cost Indemnifying Party reasonably informed of the Indemnifying Partyprogress of any such defense, the defense and settlement of such Claim; provided, however, that (i) the compromise or settlement. The Indemnifying Party shall be permitted liable for indemnifiable Damages arising from the settlement or resolution of any claim pursuant to join and in accordance with this Section 11.4 (subject to the defense and settlement indemnification provisions of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, XI (and the Indemnifying Party shall pay to limitations contained herein) and the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the IndemniteeEscrow Agreement).
Appears in 1 contract
Sources: Merger Agreement (Netgear, Inc)
Procedures for Indemnification. (a) If there occurs an event that either The procedures for indemnification shall be as follows:
a. The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, claiming the party seeking indemnification (the “IndemniteeClaimant”) shall promptly provide give notice (the “Notice of Claim”) to the other party or parties obligated to provide from whom indemnification is claimed (the “Indemnifying Party”)) of any claim, whether between the parties or brought by a third party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. Providing If the Notice of Claim claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
b. Following receipt of notice from the Claimant of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim, the Indemnifying Party shall be entitled have thirty (30) days to participate therein and, to make such investigation of the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such Indemnitee of such election so to assume the defense thereofnotice, the Indemnifying Party shall not be liable immediately pay to the Indemnitee hereunder for any legal expenses Claimant the full amount of other counsel the claim. If the Claimant and the Indemnifying party do not agree within said period (or any other expensesmutually agreed upon extension thereof), in each case subsequently incurred the Claimant may seek appropriate legal remedy.
c. With respect to any claim by a third party as to which the IndemniteeClaimant is entitled to indemnification hereunder, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right at its own expense, to defend, at the sole cost and expense participate in or assume control of the Indemnifying Partydefense of such claim, such action by all appropriate proceedings. The Indemnitee agrees to reasonably and the Claimant shall cooperate fully with the Indemnifying Party and its counsel in party subject to reimbursement for reasonable actual out-of-pocket expenses, including reasonable attorneys’ fees, incurred by the Claimant as the result of a request by the Indemnifying party. If the Indemnifying party elects to assume control of the defense against of any such asserted liability. In any eventthird-party claim, the Indemnitee Claimant shall have the right to participate at its own expense in the defense of such asserted liability. No claim at its own expense.
d. If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
e. If the Indemnifying Party, Party does not elect to assume control or otherwise participate in the defense of any such claim or litigationthird party claim, shall, except it shall be bound by the results obtained in good faith by the Claimant with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay promptly reimburse Claimant for its defense costs including reasonable attorney’s and other legal fees and the fees of consultants used in the defense of Claimant.
f. The indemnification rights provided in Sections 5.2 and 5.3 shall extend to the Indemniteeshareholders, immediately upon demanddirectors, interest at officers, partners employees and representatives, successors and assigns of the rate Claimant although for the purpose of 10% per annumthe procedures set forth in this Section 5.4, not to exceed the maximum nonusurious rate allowed any indemnification claims by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest parties shall be considered to be Losses of made by and through the IndemniteeClaimant.
Appears in 1 contract
Procedures for Indemnification. The obligations and liabilities of the Meditrust Parties with respect to any Purchaser Indemnified Claims and the obligations and liabilities of the Purchaser with respect to any Meditrust Indemnified Claims shall be subject to the following terms and conditions, with each indemnified party designated as the "Indemnitee" and each party with the indemnification obligation designated as the "Indemnitor":
(ai) If there occurs an event that either party asserts is an indemnifiable event pursuant Within a reasonable period of time (but not to Section 5.1 or 5.2, the party seeking indemnification exceed thirty (the “Indemnitee”30) shall promptly provide days) after Indemnitee receives written notice (X) identifying (with sufficient specificity) a state of facts that would constitute a basis for an Indemnified Claim or (y) of any alleged claim that would constitute an Indemnified Claim, Indemnitee shall give the “Notice Indemnitor written notice of any such Indemnified Claim”) , which notice shall state the facts giving rise to an alleged basis for the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Indemnified Claim shall be a condition precedent to any Liability and an approximation of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party amount of its obligations hereunder but only if and to the extent that liability under such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein andIndemnified Claim, to the extent that it shall wishknown to Indemnitee (the "Indemnification Notice").
(ii) In the event any action, suit or proceeding is brought against the Indemnitee with respect to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereofan Indemnified Claim, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel action, suit or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defendproceeding shall, at the sole cost and expense Indemnitor's written election made within forty-five (45) days of the Indemnifying PartyIndemnitor's receipt of written notice of the commencement of such action, such action suit or proceeding, be defended by the Indemnitor (including all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with proceedings on appeal or for review in connection therewith) at the Indemnifying Party Indemnitor's expense and its counsel in the defense against any such asserted liability. In any eventPending the Indemnitor's election hereunder, the Indemnitee shall have the right to participate at employ its own expense in counsel to file a request for an extension of time to file an answer, or to file an answer if the defense Indemnitor fails to have its counsel file an answer within three (3) days prior to the expiration of the period within which an answer must be filed, as such period may be extended, without waiving any of Indemnitee's rights hereunder. The Indemnitee shall have the right to employ its own counsel, for the duration of such asserted liability. No Indemnifying Partyaction, suit or proceeding, at the Indemnitee's sole cost and expense, unless the actions or inactions by counsel retained by Indemnitor appears reasonably likely to result in a judgment against Indemnitee because of a failure to defend the action in a reasonably prudent manner (the burden to prove same by a preponderance of the evidence to rest with Indemnitee), in which event the Indemnitor shall pay such counsel fees and expenses. The Indemnitee shall be kept reasonably informed of such action, suit or proceeding at all stages, whether or not it is so represented.
(iii) If the Indemnitor does not assume the defense of any such claim or litigation, shall, except Indemnified Claim in accordance with the written consent of each Indemniteeterms hereof, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of then the Indemnitee, settle any at the cost and expense of the Indemnitor, may defend against such Indemnified Claim on terms that provide for (i) a criminal sanction against in such manner as the Indemnitee may deem reasonably appropriate or may settle or pay such claim, after giving written notice of the same to the Indemnitor, on such terms as the Indemnitee may deem reasonably appropriate. If the Indemnitor does assume the defense of any Indemnified Claim and, nevertheless, for whatever reason (iiincluding, without limitation, the Indemnitor's failure to pay any judgment, settlement or attorney's fees with respect thereto), the Indemnitee is required to pay such Indemnified Claim or any portion thereof, or if the Indemnitee is permitted under the terms hereof to retain its own counsel with respect to any Indemnified Claim at the Indemnitor's expense, the Indemnitee may pay such amounts which Indemnitee may deem reasonably appropriate afer giving written notice of same to Indemnitor. In the event of any such payments by the Indemnitee pursuant to this Section 3.4(s), the Indemnitor shall reimburse the Indemnitee for the amounts actually so paid by the Indemnitee within ten (10) injunctive relief affecting days after the Indemnitee's written demand therefor.
(biv) Upon receipt Notwithstanding anything to the contrary set forth hereinabove, each Indemnitor's obligations under Sections 3.4(q) and Section 3.4(r) shall be limited as follows in any event:
(1) Neither Indemnitor shall be liable or obligated for Indemnified Claims for which an Indemnification Notice is not provided to Indemnitor on or prior to the date which is five (5) Business Days after the second (2nd) anniversary date of the Closing Date; PROVIDED, HOWEVER, that such limitation shall not apply to any of the Unlimited Indemnified Claims, the responsibility of the Indemnitor for which shall be limited to Unlimited Indemnified Claims for which an Indemnification Notice is provided to the Indemnitor prior to the expiration of the applicable statute of limitations.
(2) Neither Indemnitor shall be obligated to indemnify Indemnitee with respect to any claim for Indemnified Claims, to the extent that the aggregate of all Indemnified Claims against such Indemnitor theretofore incurred is less than one hundred thousand dollars ($100,000).
(3) The time limitations described in this Section 3.4(s) shall not release, waive, reduce, limit or otherwise modify any of Indemnitee's rights or remedies for the recovery of Indemnified Claims for which Indemnification Notices were provided to the Indemnitor prior to the expiration of such time limitations.
(4) To the extent that any matter which otherwise may have constituted a Purchaser Indemnified Claim is actually reflected on the Closing Statement, then such matter shall not be the subject of a Notice of Claim, Purchaser Indemnified Claim to the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under extent that Purchaser has already received a reduction in the circumstances) to contest its indemnification obligation Purchase Price with respect to such claim, or matter; the amount thereof, by written notice intent of the parties being to permit the Purchaser to only deduct such claims once.
(v) In the event the Indemnitor fails to pay to the Indemnitee (any of the “Contest Notice”Indemnitor's obligations to the Indemnitee pursuant to this Section 3.4(s); provided, howeverwhen such payments are due, that if, the amounts of such payments shall accrue interest at the time a Notice rate per annum equal to five percent (5%) above the Prime Rate from the due date hereunder through and including the date of Claim is submitted such payment by the Indemnitor. The Indemnitor shall be liable to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered Indemnitee for all reasonable attorneys' fees and expenses incurred by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, enforce its rights and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partyremedies under this Section 3.4.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(dvi) The Indemnifying Party provisions of this Section 3.4(s) shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of survive the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the IndemniteeClosing.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either The procedures for indemnification shall be as follows:
a. The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, claiming the party seeking indemnification (the “IndemniteeClaimant”) shall promptly provide give notice (the “Notice of Claim”) to the other party or parties obligated to provide from whom indemnification is claimed (the “Indemnifying Party”)) of any claim, whether between the parties or brought by a third party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. Providing If the Notice of Claim claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
b. Following receipt of notice from Claimant of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim, the Indemnifying Party shall be entitled have thirty (30) days to participate therein and, to make such investigation of the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such Indemnitee of such election so to assume the defense thereofnotice, the Indemnifying Party shall not be liable immediately pay to the Indemnitee hereunder for any legal expenses Claimant the full amount of other counsel the claim. If the Claimant and the Indemnifying party do not agree within said period (or any other expensesmutually agreed upon extension thereof), in each case subsequently incurred the Claimant may seek appropriate legal remedy. MEMBERSHIP INTEREST IN CS BANKERS V, LLC PAGE 6 OF 11
c. With respect to any claim by a third party as to which the IndemniteeClaimant is entitled to indemnification hereunder, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right at its own expense, to defendparticipate in or assume control of the defense of such claim, at and the sole cost and expense Claimant shall cooperate fully with the Indemnifying party subject to reimbursement for reasonable out-of-pocket expenses, including reasonable attorneys’ fees, incurred by the Claimant as the result of a request by the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in elects to assume control of the defense against of any such asserted liability. In any eventthird-party claim, the Indemnitee Claimant shall have the right to participate at its own expense in the defense of such asserted liability. No claim at its own expense.
d. If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
e. If the Indemnifying Party, Party does not elect to assume control or otherwise participate in the defense of any such claim or litigationthird party claim, shall, except it shall be bound by the results obtained in good faith by the Claimant with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay promptly reimburse Claimant for its defense costs including reasonable attorneys’ and other legal fees and the fees of consultants used in the defense of Claimant.
f. The indemnification rights provided in Sections 7.01 and 7.02 shall extend to the Indemniteeshareholders, immediately upon demanddirectors, interest at officers, partners, employees, affiliates, subsidiaries and representatives, successors and assigns of the rate Claimant although for the purpose of 10% per annumthe procedures set forth in this Section 7.03, not to exceed the maximum nonusurious rate allowed any indemnification claims by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest parties shall be considered to be Losses of made by and through the IndemniteeClaimant.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either The procedures for indemnification shall be as follows:
A. The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, claiming the party seeking indemnification (the “Indemnitee”"Claimant") shall promptly provide give notice to the party from whom indemnification is claimed (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”)") of any claim, whether between the parties or brought by a third party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. Providing If the Notice of Claim claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
B. Following receipt of notice from the Claimant of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim, the Indemnifying Party shall be entitled have thirty (30) days to participate therein and, to make such investigation of the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such Indemnitee of such election so to assume the defense thereofnotice, the Indemnifying Party shall not be liable immediately pay to the Indemnitee hereunder for Claimant the full amount of the claim. Buyer shall be entitled to apply any legal expenses or all of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with Accounts Receivable collected on behalf of Seller to a claim as to which Buyer is entitled to indemnification hereunder. If the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee Claimant and the Indemnifying Party because such representation would be reasonably likely do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy.
C. With respect to result in any claim by a conflict of interestthird party as to which the Claimant is entitled to indemnification hereunder, then the Indemnitee Indemnifying Party shall have the right at its own expense, to defendparticipate in or assume control of the defense of such claim, at and the sole cost and expense of Claimant shall cooperate fully with the Indemnifying Party, such action subject to reimbursement for reasonable actual out-of-pocket expenses incurred by all appropriate proceedingsthe Claimant as the result of a request by the Indemnifying Party. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in elects to assume control of the defense against of any such asserted liability. In any eventthird-party claim, the Indemnitee Claimant shall have the right to participate at its own expense in the defense of such asserted liability. No claim at its own expense.
D. If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
E. If the Indemnifying Party, Party does not elect to assume control or otherwise participate in the defense of any such claim or litigationthird party claim, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages it shall be bound by the Indemnifying Person. The Indemnifying Party agrees to afford results obtained by the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation Claimant with respect to such claim, or the amount thereof, by written notice .
F. The indemnification rights provided in Sections 10.2 and 10.3 shall extend to the Indemnitee (the “Contest Notice”); providedshareholders, howeverdirectors, that ifofficers, at the time a Notice of Claim is submitted to the Indemnifying Party the amount partners employees and representatives of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect Claimant although for the purpose of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss procedures set forth in the Notice of Claimthis Section 10.4, or subsequent Notice of Liability, any indemnification claims by such parties shall be deemed established made by and accepted by through the Indemnifying PartyClaimant.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. (a) If there occurs an event The party (the "Indemnified Party") that either party asserts is an indemnifiable event pursuant may be entitled to Section 5.1 or 5.2, indemnity hereunder shall give prompt notice to the party seeking indemnification obligated to give indemnity hereunder (the “Indemnitee”"Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party to give the notice described in this Section 6.5(a) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but under this Article 6 only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee has been prejudiced by the lack of timely and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent adequate notice (except that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the IndemniteeIndemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in connection with any event within 10 days thereof) after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit or proceeding.
(b) Buyer shall have the obligation to assume the defense thereof other than reasonable costs or settlement of investigationany third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder, provided that (i) Seller shall at all times have the right, at its option, to participate fully therein, and (ii) if Buyer does not proceed diligently to defend the third-party claim, suit, action or proceeding within 10 days after receipt of notice of such third-party claim, suit, action or proceeding, Seller shall have the right, but not the obligation, to undertake the defense of any such third-party claim, suit, action or proceeding.
(c) The Indemnifying Party shall not be required to indemnify the Indemnified Party with respect to any amounts paid in settlement of any third-party suit, action, proceeding or investigation entered into without the written consent of the Indemnifying Party; provided, however, that if the Indemnitee reasonably believes that counsel for Indemnified Party is a Buyer Indemnified Party, such third-party suit, action, proceeding or investigation may be settled without the consent of the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by 10 days' prior written notice to the Indemnitee (Indemnifying Party if such third-party suit, action, proceeding or investigation is then unreasonably interfering with the “Contest Notice”)Purchased Business or other operations of Buyer and the settlement is commercially reasonable under the circumstances; provided, howeverand provided further, that if, at the time a Notice of Claim is submitted to if the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.gives 10 days'
Appears in 1 contract
Sources: Asset Purchase Agreement (Brightstar Information Technology Group Inc)
Procedures for Indemnification. (a) If there occurs Promptly following receipt by a Buyer Indemnified Party or a Seller Indemnified Party, as the case may be (each, an event that either “Indemnified Party”), of notice by a third party asserts is an indemnifiable event (including any Governmental Entity) of any complaint, dispute or claim or the commencement of any audit, investigation, action or proceeding with respect to which such Indemnified Party may be entitled to indemnification pursuant hereto, such Indemnified Party shall provide written notice thereof to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification indemnify under this Agreement (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability hereunder with respect to such claim only if, at and only to the time a Notice extent that, such failure to so notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of Claim is submitted rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the amount of the Loss in respect thereof has not yet been determinedright, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further upon written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Indemnified Party setting forth within twenty (20) days thereafter assuming full responsibility for any Buyer Claims or Seller Claims (as the amount case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such audit, investigation, action or proceeding, including the Loss incurred by the Indemnitee that was the subject employment of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party counsel reasonably satisfactory to the claimIndemnified Party and the payment of reasonable and documented fees and disbursements of such counsel. In the event, and if the objection relates to the amount of the Loss asserted, the amount, if anyhowever, that the Indemnifying Party believes is due declines or fails to assume the Indemniteedefense of the audit, and any undisputed amount shall be promptly paid over investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnitee. If no such Contest Notice is given Indemnified Party, in either case within such 20 day period, then any Buyer Claims or Seller Claims (as the obligation case may be), shall include the reasonable fees and disbursements of counsel for the Indemnified Party as incurred. In any audit, investigation, action or proceeding for which indemnification is being sought hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such party’s own expense. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party or Indemnified Party (as the case may be) reasonably apprised of the status of the defense of any matter the defense of which it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(b) No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim(which may not be unreasonably withheld or delayed), or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
unless (ci) If the Indemnifying Party fails to assume and maintain the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably claim pursuant to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (iSection 7.4(a) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, or (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views settlement, compromise or consent includes an unconditional release of the Indemnifying Party and giving them due considerationits officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.
(dc) The In the event an Indemnified Party claims a right to payment pursuant hereto with respect to any matter not involving a third party complaint, dispute or claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party (a “Claim Notice”). Such Claim Notice shall make specify the basis for such claim. The failure by any payment required Indemnified Party so to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and notify the Indemnifying Party shall pay not relieve the Indemnifying Party from any liability that it may have to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not such Indemnified Party with respect to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent any claim made pursuant to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteethis Section 7.4(c).
Appears in 1 contract
Sources: Call Agreement (FX Real Estate & Entertainment Inc.)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Whenever a claim shall arise for indemnification under this Section 5.1 or 5.27, the party seeking entitled to indemnification (the “IndemniteeIndemnified Party”) ), shall promptly provide notice (notify, in writing, the “Notice of Claim”) to the other party or parties obligated to provide from whom indemnification is sought (the “Indemnifying Party”)) of such claim and, when known, the facts constituting the basis for such claim. Providing In the Notice event of Claim shall be any such claim for indemnification resulting from or in connection with a condition precedent to any Liability of claim or Action by a third party; the Indemnifying Party hereundermay assume the defense thereof at its sole cost and expense; provided, however, that no settlement of any such claim or Action shall be made without the prior written consent of the Indemnified Party (which consent may not be unreasonably withheld) unless such settlement fully and unconditionally releases the failure to provide prompt notice as provided herein will relieve Indemnified Party from all further liability or obligation on the part of the Indemnified Party in connection with such claim or Action, in which case such consent shall not be required. If an Indemnifying Party assumes the defense of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim or Action, the Indemnifying Party shall be entitled to participate therein and, to select counsel and take all steps necessary in the extent that it shall wish, to assume the settlement or defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that Indemnified Party may, at its own expense, participate in any such Action with the counsel for of its choice. Whether or not the Indemnifying Party canassumes the defense of any claim or Action, the Indemnified Party shall not represent both compromise or settle such claim or Action without the Indemnitee and prior written consent of the Indemnifying Party because such representation would (which consent may not be reasonably likely unreasonably withheld).
(b) The Indemnified Party, the Indemnifying Party and their respective legal counsel shall cooperate in the compromise of, or defense against, any claim or Action by a third party; provided that the Indemnified Party shall be entitled to result participate in a conflict of interest, then the Indemnitee shall have the right defense and to defendemploy counsel, at the sole cost and expense Indemnified Party’s expense, to assist therein. The Indemnified Party may not settle or compromise any claim over the objection of the Indemnifying Party, such action by all appropriate proceedingsexcept that the Indemnified Party may settle any claim with respect to which it waives its indemnification under this Agreement. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against chooses to defend any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted Indemnified Party shall make available to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determinedany books, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent records or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons other documents or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given personnel within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article control that are not paid within five business days of the date on which reasonably necessary or appropriate for such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteedefense.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either any action, suit or proceeding will be commenced by a third party asserts against, or any claim or demand be asserted against, Seller or Restrac, as the case may be, in respect of which Seller or Restrac is an indemnifiable event pursuant entitled to demand indemnification under Section 5.1 or 5.211 of this Agreement, then as a condition precedent thereto, the party seeking indemnification (the “Indemnitee”"INDEMNITEE") shall will promptly provide notice (the “Notice of Claim”) to notify the other party or parties obligated ("INDEMNITOR") in writing to provide indemnification (the “Indemnifying Party”)that effect and with reasonable particularity. Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein The Indemnitor will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at assume the sole cost and expense control of the Indemnifying Partydefense, compromise or settlement of such action by all appropriate proceedings. The Indemnitee agrees action, suit, proceeding or claim, including the selection of counsel, subject to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, right of the Indemnitee shall have the right to participate (at its own expense and with counsel of its choice) in the defense defense, compromise or settlement of such asserted liability. No Indemnifying Partyaction, suit, proceeding, claim or demand, and in connection therewith the defense of Indemnitee will cooperate fully in all respects with the Indemnitor in any such defense, compromise or settlement. The Indemnitor will not compromise or settle any such action, suit, proceeding, claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, demand without the prior written consent of the Indemnitee, settle which consent will not be unreasonably withheld or delayed. So long as the Indemnitor is defending in good faith any Claim on terms that provide for (i) such action, suit, proceeding, claim or demand asserted by a criminal sanction third party against the Indemnitee, the Indemnitee will not settle or (ii) injunctive relief affecting compromise such action, suit, proceeding, claim or demand without the prior written consent of the Indemnitor, which consent will not be unreasonably withheld or delayed. The Indemnitee will make available to the Indemnitor or its agents all records and other materials in the Indemnitee.
's possession reasonably required for contesting any third party claim or demand. If the Indemnitor will fail to promptly and adequately defend any such action, suit, proceeding, claim or demand, or if there is an inherent conflict between the legal or factual positions of Indemnitor and Indemnitee, then the Indemnitee may defend, through counsel of its own choosing, such action, suit, proceeding, claim or demand and (bso long as Indemnitee gives the Indemnitor at least ten (10) Upon receipt days' notice of a Notice the terms of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under proposed settlement thereof and permits the circumstancesIndemnitor to then undertake the defense thereof if Indemnitor objects to the proposed settlement) to contest its indemnification obligation with respect settle such action, suit, proceeding, claim or demand and to such claim, or recover from the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party Indemnitor the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partylosses.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Software and Trademark License Agreement (Restrac Inc)
Procedures for Indemnification. (a) If there occurs an event The party (the "Indemnified Party") that either party asserts is an indemnifiable event pursuant may be entitled to Section 5.1 or 5.2, indemnity hereunder shall give prompt notice to the party seeking indemnification obligated to give indemnity hereunder (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability ") of the Indemnifying assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party hereunder, and to give the failure to provide prompt notice as provided herein will described in this Section shall relieve the Indemnifying Party of its obligations hereunder but under this Article only if and to the extent that such failure materially prejudices Indemnifying Party has been prejudiced by the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 10 days thereof) after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit or proceeding.
(b) Buyer shall have the obligation to assume the defense or settlement of any third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder. In case , provided that (i) Seller shall at all times have the right, at its option and at its own expense, to participate fully therein, and (ii) if Buyer does not proceed diligently to defend the third-party claim, suit, action or proceeding within 10 days after receipt of notice of such third-party claim, suit, action or proceeding, Seller shall have the right at Buyer's expense, but not the obligation, to undertake the defense of any such third-party claim, suit, action or proceeding.
(c) The Indemnifying Party shall not be brought against required to indemnify the Indemnified Party with respect to any Indemnitee and it shall provide amounts paid in settlement of any third-party suit, action, proceeding or investigation entered into without the written consent of the Indemnifying Party; provided, however, that if the Indemnified Party is a Notice Buyer Indemnified Party, such third-party suit, action, proceeding or investigation may be settled without the consent of Claim the Indemnifying Party on 10 days' prior written notice to the Indemnifying Party if such third-party suit, action, proceeding or investigation is then unreasonably interfering with the Purchased Business or other operations of Buyer and the commencement thereofsettlement is commercially reasonable under the circumstances; and provided further, that if the Indemnifying Party shall be entitled to participate therein and, gives 10 days' prior written notice to the extent Indemnified Party of a settlement offer that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party desires to accept and to pay all Losses with respect thereto ("Settlement Notice") and the Indemnified Party fails or refuses to consent to such Indemnitee settlement within 10 days after delivery of the Settlement Notice to the Indemnified Party, and such election so to assume settlement otherwise complies with the defense thereofprovisions of this Section , the Indemnifying Party shall not be liable for Losses arising from such third-party suit, action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party will consent to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the IndemniteeIndemnified Party, settle if such judgment or settlement imposes any Claim on terms that provide for (i) a criminal sanction against obligation or liability upon the Indemnitee Indemnified Party other than the execution, delivery or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt approval thereof and customary releases of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation claims with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationmatter thereof.
(d) The Indemnifying Party parties shall make cooperate in defending any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentthird-party suit, action, proceeding or investigation, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of the Indemnified Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party shall pay in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the Indemnitee, immediately upon demand, interest at the rate purpose of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses enforcing any right of the Indemniteeindemnity granted to such Indemnified Party pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Brightstar Information Technology Group Inc)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant Promptly after receipt by a Party entitled to Section 5.1 or 5.2, the party seeking indemnification hereunder (the “Indemnitee”) of written notice of the assertion or the commencement of any Litigation by a third party with respect to any matter referred to in Sections 8.3(a) or 8.3(b), the Indemnitee shall promptly provide give written notice thereof to the Party obligated to indemnify the Indemnitee (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying PartyIndemnitor”). Providing the Notice of Claim , which notice shall be include a condition precedent to any Liability description of the Indemnifying Party hereunderclaim or Litigation, the amount thereof (if known and quantifiable) and the basis for the claim or Litigation, and thereafter shall keep the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, Indemnitor reasonably informed with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationrespect thereto; provided, however, that if failure of the Indemnitee reasonably believes to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would Indemnitor is actually prejudiced thereby.
(b) Any Indemnitor shall be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right entitled to participate at its own expense in the defense of such asserted liability. No Indemnifying Partyclaim or Litigation giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; provided, however, that:
(i) the Indemnitee shall be entitled to participate in the defense of such claim or Litigation and to employ counsel of its choice for such purpose, so long as the fees and expenses of such separate counsel are borne by the Indemnitee;
(ii) if the Indemnitor elects to control the defense of any such claim or litigationLitigation, shall, except with then the Indemnitor shall obtain the prior written consent of each Indemnitee, consent to entry of any judgment or enter the Indemnitee before entering into any settlement that of a claim or Litigation or ceasing to defend such claim or Litigation if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not include as an unconditional term thereof the expressly and unconditionally release of the Indemnitee from all Liability in Liabilities with respect to such claim or litigation or that Litigation, without prejudice; and
(iii) if the Indemnitor does not solely require elect to control the payment defense of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford any such claim or Litigation, then the Indemnitee and its counsel shall obtain the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the prior written consent of the IndemniteeIndemnitor before entering into any settlement of a claim or Litigation or ceasing to defend such claim or Litigation if, settle any Claim on terms that provide for (i) pursuant to or as a criminal sanction result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee Indemnitor or (ii) injunctive relief affecting if such settlement does not expressly and unconditionally release the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation Indemnitor from all Liabilities with respect to such claim, claim or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the IndemniteeLitigation, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationprejudice.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
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Procedures for Indemnification. (a) If there occurs any Buyer Indemnified Party or any Seller Indemnified Party (hereinafter an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “IndemniteeIndemnified Party”) shall promptly provide notice Claim to have suffered any Losses (the other than with respect to any Claim asserted, demand or other Action by any Person who is not a party to this Agreement (hereinafter a “Notice of Third-Party Claim”)) to for which indemnification is available under Section 10.02 or 10.03, as the other case may be, the Indemnified Party shall notify the party or parties obligated required to provide indemnification (the hereinafter an “Indemnifying Party”) in writing of such Claim. Any written notice provided by an Indemnified Party to an Indemnifying Party of a Claim for which indemnification is available hereunder shall be given promptly after the Indemnified Party becomes aware of the Claim, shall describe the nature of such Claim, the facts and circumstances that give rise to such Claim and the amount of the Losses attributable to such Claim if reasonably ascertainable at the time such Claim is made (or if not then reasonably ascertainable, the maximum amount of such Claim reasonably estimated by the Indemnified Party). Providing In the Notice of Claim shall be a condition precedent to any Liability of event that within thirty (30) days after the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve receipt by the Indemnifying Party of its obligations hereunder but only if and to such a written notice from the extent that such failure materially prejudices Indemnified Party, the Indemnifying Indemnified Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to not have been given notice by the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory a written objection to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Indemnification Claim, the Indemnifying Party shall conclusively be deemed to have 20 calendar days (or such shorter period as may be appropriate under agreed that it is liable to indemnify the circumstances) to contest its indemnification obligation Indemnified party for the full amount of all Losses arising with respect to such claim, or the amount thereof, by Claim described in the written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim which is submitted delivered to the Indemnifying Party with respect to any such Indemnification Claim, including the amount of the Loss Losses specified by the Indemnified Party in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect the written notice of the amount Indemnification Claim which is delivered to the Indemnifying Party. Notwithstanding anything to the contrary contained in Section 10.02 or Section 10.03 hereof, an Indemnifying Party shall have no obligation to indemnify an Indemnified Party with respect to a Breach of Seller Rep Claim or a Breach of Buyer Rep Claim unless the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or required to be delivered by the Indemnitee Indemnified Party pursuant to this Section 10.04(a) is delivered prior to the expiration of the applicable Survival Period provided for in Section 10.01 hereof for the representation and warranty giving rise to the Breach of Seller Rep Claim or the Breach of Buyer Rep Claim.
(b) If within the thirty (30) day period described in Section 10.04(a) above, the Indemnified Party shall have been given notice by the Indemnifying Party setting forth the amount Indemnifying Party’s objections to such Indemnification Claim and the Indemnifying Party’s reasons for such objection, then the parties shall negotiate in good faith for a period of ten (10) Business Days from the date the Indemnified Party receives such objection. After such ten (10) Business Day period (or such longer period as they may agree in writing), if the parties still cannot agree on the Indemnification Claim, the Indemnified Party may, at any time thereafter, until the expiration of the Loss incurred by the Indemnitee that was the subject applicable statute of the earlier Notice of limitations with respect to its Indemnification Claim. Such Contest Notice shall specify the reasons or bases for the objection of , commence legal proceedings against the Indemnifying Party to the claim, enforce its rights to indemnification from and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and against any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth Losses described in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partywritten notice described in Section 10.04(a) above.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Whenever a claim shall arise for indemnification under Section 5.1 or 5.216 of this Agreement, the party seeking entitled to indemnification (the “Indemnitee”"Indemnified Party") shall promptly provide notice notify the party from whom indemnification is sought (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”). Providing ") of such claim and, when known, the Notice facts constituting the basis for such claim; provided, however, that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceedings by a third party, the Indemnified Party shall be a condition precedent give such notice thereof to any Liability of the Indemnifying Party hereundernot later than ten (10) business days prior to the time any response to the asserted claim is required, if possible, and the in any event within five (5) business days following receipt of notice thereof. The Indemnified Party's failure to provide prompt give notice as provided herein will relieve of any claim or Legal Proceeding by a third party shall not constitute a defense (in whole or in part) to any claim for indemnification by the Indemnifying Party of its obligations hereunder but Indemnified Party, except and only if and to the extent that such failure materially prejudices shall result in any material prejudice to the Indemnifying Party. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee may, at its sole cost and it shall provide a Notice of Claim to expense, assume the defense thereof; provided, however, that the Indemnifying Party shall first have agreed in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses, attributable to such claim or proceeding. If an Indemnifying Party assumes the commencement thereofdefense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume select counsel and take all steps necessary in the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if no settlement shall be made, other than a settlement involving solely money damages, without the Indemnitee reasonably believes prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld; provided, further, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel for of its choice without any right of control thereof. So long as the Indemnifying Party canis in good faith defending such claim or proceeding, the Indemnified Party shall not represent both compromise or settle such claim without the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingswhich consent may be withheld in Indemnifying Party's sole discretion. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in does not assume the defense of any such claim or litigation, shall, except litigation in accordance with the written consent of each Indemniteeterms hereof, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to Indemnified Party may defend against such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Personsin such manner as it may deem appropriate, including any Governmental settling such claim or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemniteelitigation.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either The procedures for indemnification ------------------------------ shall be as follows:
A. The party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, claiming the party seeking indemnification (the “Indemnitee”"Claimant") shall promptly provide give notice to the party from whom indemnification is claimed (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”)") of any claim, whether between the parties or brought by a third party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. Providing If the Notice of Claim claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
B. Following receipt of notice from the Claimant of a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereofclaim, the Indemnifying Party shall be entitled have thirty (30) days to participate therein and, to make such investigation of the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such Indemnitee of such election so to assume the defense thereofnotice, the Indemnifying Party shall not be liable immediately pay to the Indemnitee hereunder for any legal expenses Claimant the full amount of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with claim. If the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee Claimant and the Indemnifying Party because such representation would be reasonably likely do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy.
C. With respect to result in any claim by a conflict of interestthird party as to which the Claimant is entitled to indemnification hereunder, then the Indemnitee Indemnifying Party shall have the right fight at its own expense, to defendparticipate in or assume control of the defense of such claim, at and the sole cost and expense of Claimant shall cooperate fully with the Indemnifying Party, such action subject to reimbursement for reasonable actual out-of-pocket expenses incurred by all appropriate proceedingsthe Claimant as the result of a request by the Indemnifying Party. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in elects to assume control of the defense against of any such asserted liability. In any eventthird-party claim, the Indemnitee Claimant shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Asset Purchase Agreement (Salem Communications Corp /De/)
Procedures for Indemnification. (a) If there occurs an In the event that either any claim is made, any suit or action is commenced, or any knowledge is received of a state of facts that, if not corrected, would give rise to a right of indemnification of a party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification hereunder (the “IndemniteeIndemnified Party”) shall promptly provide notice (the “Notice of Claim”) to by the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing , the Notice of Claim shall be a condition precedent Indemnified Party will give written notice to any Liability of the Indemnifying Party hereunderas promptly as practicable, and but, in the case of lawsuit, in no event later than the time necessary to enable the Indemnifying Party to file a timely answer to the complaint; provided that failure to provide prompt give timely notice as provided herein will shall not relieve the Indemnifying Party of its obligations hereunder but only if and except to the extent that it is actually prejudiced thereby. Such written notice shall describe such failure materially prejudices claim in reasonable detail including the Indemnifying sections of this Agreement which form the basis for such claim. The Indemnified Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim 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 commencement thereofIndemnified Party relating to any such possible claim for indemnification, and each party hereunder will render to the other such assistance as it may reasonably require of the other (at the expense of the party requesting assistance) in order to insure prompt and adequate defense of any suit, claim or proceeding based upon a state of facts that may give rise to a right of indemnification hereunder.
(b) Subject to the terms hereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at or to direct the sole cost and expense defense of, any such suit, claim or proceeding. The Indemnifying Party shall notify the Indemnified Party via facsimile transmission, with a copy by mail, within 30 days (or sooner, if the nature of the Indemnifying Partyclaim so requires) of having been notified pursuant to Section 11.3(a), such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with whether the Indemnifying Party elects to employ counsel and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in assume the defense of any such claim, suit or action. If the Indemnifying Party does not timely notify the Indemnified Party of its election to assume the defense (after a second notice has been given any time within or after the time period described above), the Indemnifying Party shall be bound by any determination in such suit, claim or litigationproceeding or any compromise or settlement effected by the Indemnified Party, shallprovided that the Indemnified Party shall not compromise or settle a suit, except with the written consent claim or proceeding that includes an admission of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release liability of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including or seeks any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Partymaterial non-monetary relief, without the written consent of the IndemniteeIndemnifying Party, settle which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall institute and maintain any Claim on terms that provide for such defense diligently and reasonably and shall keep the Indemnified Party fully advised of the status thereof. The Indemnified Party shall have the right to employ its own counsel if the Indemnifying Party so elects to assume such defense, but the fees and expenses of such counsel shall be at the Indemnified Party’s expense, unless (i) a criminal sanction against the Indemnitee or employment of such counsel shall have been authorized in writing by the Indemnifying Party; (ii) injunctive relief affecting such Indemnified Party shall have reasonably concluded that the Indemnitee.
interests of such parties are conflicting such that it would be inappropriate for the same counsel to represent both parties (b) Upon receipt of a Notice of Claim, in which case the Indemnifying Party shall not have 20 calendar days (or the right to direct the defense of such shorter period as may be appropriate under action on behalf of the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”Indemnified Party); provided, however, that if, at the time a Notice of Claim is submitted to or (iii) the Indemnifying Party the amount shall not have employed counsel to take charge of the Loss in respect thereof has not yet been determined, defense of such 20 day period in respect of, but only in respect of action within a reasonable time after electing to assume the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claimdefense thereof, and if the objection relates to the amount in any of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, such events such reasonable fees and any undisputed amount expenses shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted borne by the Indemnifying Party.
(c) If the The Indemnifying Party fails to assume shall have the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnificationcompromise and settle any suit, may assume, at claim or proceeding in the cost name of the Indemnifying Indemnified Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in not compromise or settle a suit, claim or proceeding (i) unless it indemnifies the defense Indemnified Party for all Losses arising out of or relating thereto and settlement of such Claim and to employ counsel at its own expense, (ii) that includes an admission of liability of the Indemnified Party or seeks any material non-monetary relief, without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. Any final judgment or decree entered in any claim, suit or action for which the Indemnifying Party shall cooperate with the Indemnitee in did not assume the defense in accordance herewith shall be deemed to have been consented to by, and settlement of such Claim in any manner reasonably requested by shall (subject to the Indemnitee and (iiiother provisions hereof) the Indemnitee shall not settle such Claim without soliciting the views of be binding upon, the Indemnifying Party as fully as if the Indemnifying Party had assumed the defense thereof and giving them due considerationa final judgment or decree had been entered in such claim, suit or action, or with regard to such claim, suit or action by a court of competent jurisdiction for the amount of such settlement, compromise, judgment or decree. The Indemnifying Party shall be subrogated to any claims or rights of the Indemnified Party as against any other Persons with respect to any amount paid by the Indemnifying Party under this Article XI.
(d) The Indemnifying Party shall make any payment required to be made Amounts owing under this Article in cash and on demand. Any payments required to XI shall be paid by an Indemnifying Party under this Article that are not paid within five business days of promptly upon written demand for indemnification containing in reasonable detail the date on which facts giving rise to such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeliability.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs Whenever a claim shall arise ----- ------------------------------ for indemnification under Sections 14.1, 14.2 and 14.3, with the exception of claims for litigation expenses in respect of litigation as to which a notice of claim, as provided in this Section 14.4, has previously been given, which expenses shall be funded on an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2ongoing basis, the party seeking entitled to indemnification (the “Indemnitee”"Indemnified Party") shall promptly provide notice notify the party from ----------------- which indemnification is sought (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “"Indemnifying Party”). Providing ") of such claim and, ------------------ when known, the Notice facts constituting the basis for such claim; provided, however, -------- ------- that in the event of Claim any claim for indemnification hereunder resulting from or in connection with any claim or legal proceeding by a third party, the Indemnified Party shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and the failure to provide prompt give such notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim thereof to the Indemnifying Party not later than ten business days prior to the time any response to the asserted claim is required, if possible, and in any event within five business days following receipt of notice thereof. Failure to give timely notice or to include any specified information in any notice required by this Section 14.4 will not effect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise damaged as a result of such failure. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof using counsel who is reasonably satisfactory to the Indemnified Party; provided, -------- however, that the Indemnifying Party shall first have agreed in writing that it ------- does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses attributable to such claim or proceeding; and provided, however, that if the defendants in any such actions include both -------- ------- the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses or rights available to it which have not been waived and are in actual or potential conflict with those available to the Indemnifying Party, the Indemnified Party shall have the right to select one law firm to act as separate counsel, on behalf of such Indemnified Party, at the expense of the commencement thereofIndemnifying Party. Subject to the second proviso of the immediately preceding sentence, if an Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume select counsel and take all steps necessary in the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that no settlement shall be made without the -------- ------- prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (and if the Indemnitee reasonably believes that counsel for Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party cannot represent both and which the Indemnitee other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement to have suffered Losses in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided, further, that subject to -------- ------- the second proviso of the immediately preceding sentence, the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party because is in good faith defending such representation would be reasonably likely to result in a conflict of interestclaim or proceeding, then the Indemnitee Indemnified Party shall have not compromise or settle such claim without the right to defend, at the sole cost and expense prior written consent of the Indemnifying Party, such action by all appropriate proceedingswhich consent shall not be unreasonably withheld. The Indemnitee agrees to reasonably cooperate with If the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in does not assume the defense of any such claim or litigation, shall, except litigation in accordance with the written consent of each Indemniteeterms hereof, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, without limitation, settling such claim or that does not solely require litigation (after giving prior written notice of the payment of money damages by same to the Indemnifying Person. The Indemnifying Party agrees to afford and obtaining the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives prior written consent of or counsel for such Persons. In no event shall the Indemnifying Party, without which consent shall not be unreasonably withheld) on such terms as the written consent Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 14.4. Notwithstanding the foregoing, at any time after the Indemnifying Party has failed to discharge its liability for legal and other expenses pursuant to this Section 14.4, which failure shall not have been cured, or at any time the Indemnifying Party is subject to a bankruptcy case pursuant to Chapter 7 or Chapter 11 of the IndemniteeU.S. Bankruptcy Code, if the Indemnified Party shall propose to settle any Claim on terms that a claim as to which it intends to seek indemnity, it shall provide for the Indemnifying Party with 21 days' written notice of such proposed settlement, and the Indemnifying Party shall, within such period either (i) a criminal sanction against consent to the Indemnitee terms of the proposed settlement or (ii) injunctive relief affecting provide the IndemniteeIndemnified Party with (A) a written notice of objection to the proposed settlement, with a statement of reason, (B) reasonable evidence that the financial condition of the Indemnifying Party is sufficient to permit it to pay a judgment for the full amount being sought by the third party claimant (or, at the Indemnified Party's request, a letter of credit in such amount) and (C) an undertaking to satisfy any such judgment.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice Notwithstanding anything to the Indemnitee (the “Contest Notice”); providedcontrary herein contained, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by event the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Company is an Indemnifying Party, the defense and settlement Company may settle any third-party claim against an Indemnified Party as long as it obtains an unconditional release from such third party for the benefit of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationIndemnified Party.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs Except as otherwise provided in Sections 6.1 and 6.2, subject to the limitations imposed by Sections 6.1, 6.2 and 6.3 and 8.1, promptly after receipt by an event that either indemnified party asserts is an indemnifiable event pursuant to Section 5.1 the provisions of this Article VI of notice of the commencement of any action, claim or 5.2proceeding involving the subject matter of the foregoing indemnity provisions, the such indemnified party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) shall, if a claim thereof is to be made against an indemnifying party pursuant to the other provisions of this Article VI, promptly notify such indemnifying party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and commencement thereof; but the failure omission to provide prompt notice as provided herein will so notify such indemnifying party shall not relieve the Indemnifying Party of its obligations hereunder but only if and it from any liability which it may have to the extent that indemnified party otherwise than hereunder unless such failure omission shall have materially prejudices adversely affected the Indemnifying Party hereunderindemnifying party' s ability to defend such action, claim or proceeding. In case any such action shall be action, claim or proceeding is brought against any Indemnitee an indemnified party and it shall provide a Notice of Claim to notifies the Indemnifying Party indemnifying party of the commencement thereof, the Indemnifying Party indemnifying party shall be entitled have the right to participate therein in, and, to the extent that it shall may wish, to assume the defense or conduct thereof, with counsel reasonably satisfactory to such Indemnitee andindemnified party; provided, after however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded, based upon a written opinion of legal counsel, that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party shall have the right to select separate counsel to participate in the defense of such action on behalf of such indemnified party. After notice from the Indemnifying Party indemnifying party to such Indemnitee indemnified party of such its election so to assume the defense thereof, the Indemnifying Party indemnifying party shall not be liable to the Indemnitee hereunder indemnified party for any legal expenses of or other counsel or any other expenses, in each case expense subsequently incurred by the Indemnitee, such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, howeverunless (i) the indemnified party shall have employed counsel in accordance with the proviso of the preceding sentence, that if (ii) the Indemnitee reasonably believes that indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (iii) the indemnifying party has authorized the employment of counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, indemnified party at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liabilityindemnifying party. No Indemnifying Partyindemnifying party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemniteeindemnified party which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement that which does not include as an unconditional term thereof the release of the Indemnitee from all Liability liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Personslitigation. In no the event the proceeding is a tax audit, the indemnified party shall not take any action, including, without limitation, the Indemnifying Partyextension of any applicable limitations period, without the express written consent of the Indemniteeindemnifying party, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, which consent shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partyunreasonably withheld.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Sources: Stock Purchase Agreement (Clean Energy Fuels Corp.)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by an Indemnitee by delivery of a condition precedent written notice to any Liability of the Indemnifying Party hereunder, Indemnitor requesting indemnification and specifying the basis on which indemnification is sought and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party amount of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein asserted Losses and, to in the extent that it shall wishcase of a Third Party Claim, to assume the defense thereof, with counsel reasonably satisfactory to containing (by attachment or otherwise) such Indemnitee and, after notice from the Indemnifying Party to other information as such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, concerning such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Third Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeClaim.
(b) Upon receipt of If the Indemnification Claim involves a Notice of Third Party Claim, the Indemnifying Party procedures set forth in Paragraph 9.4 hereof shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered observed by the Indemnitee to and the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying PartyIndemnitor.
(c) If the Indemnifying Indemnification Claim involves a matter other than a Third Party fails Claim, the Indemnitor shall have ninety (90) days to assume object to such Indemnification Claim by delivery of a written notice of such objection to such Indemnitee specifying in reasonable detail the basis for such objection. If the Indemnification Claim is an Environmental Claim, Indemnitor and Indemnitee shall immediately commence and shall attempt to complete within the ninety (90) day period such investigations as are necessary to determine whether the pollutants triggering a clean up existed at the time of Closing. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim by the Indemnitor, and the Indemnification Claim shall be paid in accordance with subparagraph (d) hereof. If an objection is timely interposed by the Indemnitor, then the parties shall negotiate in good faith for a period of not less than sixty (60) days from the date the Indemnitee receives such objection prior to commencing any formal legal action, suit or proceeding with respect to such Indemnification Claim.
(d) If Indemnitee requests a sum of money then upon determination of the amount due the Indemnitee for an Indemnification Claim, whether by agreement between the Indemnitor and the Indemnitee or by an arbitration award or by any other final adjudication ("Determined Amount of Indemnification"), the Indemnitor shall pay the amount of such Indemnification Claim within ten (10) days of the date such amount is determined.
(e) If the Indemnitor assumes the defense of such an Environmental Claim: (i) no compromise or settlement thereof may be effected by the Indemnitor without the Indemnitee's consent, which consent shall not be unreasonably withheld. In the event that Indemnitee objects to Indemnitor's acceptance of a compromise or settlement proposed in resolution of an Environmental Claim orIndemnitor shall tender to Indemnitee funds equal to the amount of the proposed settlement or equal to the sum required to conduct any necessary remediation, having assumed and Indemnitee shall thereafter assume any further expenses incurred in the defense and settlement continuation of such Claimlitigation or remediation, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party Indemnitor shall be permitted in no event accept or request that Indemnitee accept a compromise or settlement containing terms obligating Indemnitee to join in the defense and settlement of such Claim and undertake any actions which Indemnitee is not legally required to employ counsel at undertake, or which would require Indemnitee to materially impair its own expense, ongoing operations; (ii) the Indemnifying Party Indemnitee shall cooperate have no liability with respect to any compromise or settlement thereof effected without its consent; and (iii)in the Indemnitee event that Purchaser seeks indemnification from OTC, Purchaser shall allow OTC, as Indemnitor, such access as is reasonably necessary to conduct such remediation of the property as is required for the resolution of any Environmental Claim for which OTC is liable. Consent shall be presumed in the defense and settlement case of such Claim in any manner reasonably requested by settlements of $10,000 or less where the Indemnitee and Indemnitor has not responded within five (iii5) the Indemnitee shall not settle such Claim without soliciting the views business days of the Indemnifying Party and giving them due considerationnotice of a proposed settlement.
(df) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days OTC will perform a study of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest Environmental Conditions at the rate of 10% per annum, not to exceed Cochranville Facility within six (6) months after the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses Closing Date ("Study"). Such Study will establish contaminants levels as of the IndemniteeClosing Date for any specific pollutant measured. Purchaser agrees to provide access during normal business hours to enable OTC and its agents to perform said study.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Icn Pharmaceuticals Inc)
Procedures for Indemnification. (a) If there occurs an event that either Promptly after receipt by a party asserts is an indemnifiable event pursuant entitled to Section 5.1 indemnification under Sections 11.1 or 5.2, the party seeking indemnification 11.2 or any other provision of this Agreement (the “Indemnitee”) of written notice of the assertion or the commencement of any Proceeding with respect to any matter referred to in Sections 11.1 or 11.2 or in any other applicable provision of this Agreement, the Indemnitee shall promptly provide give written notice describing such claim or Proceeding in reasonable detail in light of the circumstances then known to the Indemnitee to the party obligated to indemnify the Indemnitee (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying PartyIndemnitor”). Providing the Notice of Claim shall be a condition precedent to any Liability of the Indemnifying Party hereunder, and thereafter shall keep the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, Indemnitor reasonably informed with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigationrespect thereto; provided, however, that if failure of the Indemnitee to keep the Indemnitor reasonably believes informed as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor is prejudiced thereby. If any Proceeding shall be commenced against any Indemnitee by a third party, the Indemnitor shall be entitled to participate in such Proceeding and assume the defense thereof with counsel reasonably satisfactory to the Indemnitee, at the Indemnitor’s sole expense; provided, however, that the Indemnitor shall not have the right to assume or control the defense of any Proceeding if at any time (i) the Indemnitee shall have one or more legal or equitable defenses available to it which are different from or in addition to those available to the Indemnitor, and, in the reasonable opinion of the Indemnitee, counsel for the Indemnifying Party canIndemnitor could not adequately represent both the interests of the Indemnitee and the Indemnifying Party because such representation would interests could be in conflict with those of the Indemnitor; (ii) such litigation is reasonably likely to result have a material adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the Indemnitor; (iii) the claim involves any criminal proceeding against an Indemnitee, (iv) the claim seeks an injunction, equitable relief or other non-monetary relief against any Indemnitee, (v) where the Indemnitor’s indemnification obligation with respect to such Proceeding is limited by the Seller’s Indemnification Cap or the Purchaser’s Indemnification Cap, as applicable, the amount of Damages alleged in such Proceeding is in excess of the amount then remaining under the Seller’s Indemnification Cap or the Purchaser’s Indemnification Cap, as applicable, at the time the Indemnitee gives the Indemnitor notice of such Proceeding, after taking into account the sum of (A) all Damages previously recovered by the Indemnitee hereunder and counted against the Seller’s Indemnification Cap or the Purchaser’s Indemnification Cap, as applicable, plus (B) all Damages specified in any then-unresolved claims made by the Indemnitee pursuant to this Article 11 which, if paid pursuant to this Article 11, would be counted against the Seller’s Indemnification Cap or the Purchaser’s Indemnification Cap, as applicable, or (vi) the Indemnitor shall not have assumed the defense of the Proceeding in a conflict timely fashion (but in any event within thirty (30) days of interestnotice of such Proceeding) or, based on the reasonable advice of outside counsel to the Indemnitee, the Indemnitor is failing to use diligent, reasonable and good faith efforts to defend such Proceeding.
(b) If the Indemnitor shall assume the defense of any Proceeding, the Indemnitee shall be entitled to participate in any Proceeding at its expense, and the Indemnitor shall not settle such Proceeding unless (i) the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff of a full and unconditional release of the Indemnitee from all liability with respect to the matters that are subject to such Proceeding, the settlement does not contain any sanction or restriction upon the conduct of any business by the Indemnitee or its Affiliates and the settlement does not include any admission of wrongdoing or misconduct by any Indemnitee or its Affiliate, or (ii) the settlement otherwise shall have been approved by the Indemnitee, such approval not to be unreasonably withheld or delayed. The Indemnitor shall afford the Indemnitee the opportunity to participate in, through counsel chosen by the Indemnitee, but not control, any defense or settlement of any Proceeding controlled by the Indemnitor pursuant to Section 11.4(a).
(c) If the Indemnitor fails to notify the Indemnitee within thirty (30) days after receipt of notice of such Proceeding pursuant to Section 11.4(a) that the Indemnitor elects to assume the defense of the Proceeding, or to the extent that the Indemnitor elects not to assume the defense or is not entitled to assume or control the defense in accordance with this Section 11.4, then the Indemnitee shall have the right to defend, at assume and control the sole cost and expense defense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party Proceeding and shall be reimbursed for its counsel documented and reasonable costs and expenses (including any documented and reasonable attorneys’ fees) incurred in the defense against any such asserted liabilityconnection therewith. In any such event, the Indemnitee shall have the right to participate at its own expense in the defense full control of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”)defense; provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required Proceeding, if indemnification is to be made under this Article in cash and on demand. Any payments required sought hereunder, without the Indemnitor’s approval, such approval not to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquentunreasonably withheld, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeconditioned or delayed.
Appears in 1 contract
Sources: Asset Purchase Agreement (Merit Medical Systems Inc)
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnitee”) shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of An Indemnification Claim shall be made by an Indemnitee by delivery of a condition precedent written notice to any Liability of the Indemnifying Party hereunderAcquiror or the Indemnitor Representative, as appropriate, requesting indemnification and specifying in reasonable detail the basis on which indemnification is sought and the failure to provide prompt notice as provided herein will relieve the Indemnifying Party amount of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein asserted Losses and, to in the extent that it shall wishcase of a Third Party Claim, to assume the defense thereof, with counsel reasonably satisfactory to containing (by attachment or otherwise) such Indemnitee and, after notice from the Indemnifying Party to other information as such Indemnitee of such election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, concerning such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Third Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the IndemniteeClaim.
(b) Upon receipt of If the Indemnification Claim involves a Notice of Third Party Claim, the Indemnifying Party procedures set forth in Section 11.3 shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered observed by the Indemnitee to and the Indemnifying Party setting forth Acquiror or the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claimIndemnitor Representative, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Partyas appropriate.
(c) If the Indemnifying Indemnification Claim involves a matter other than a Third Party fails Claim, the Acquiror or the Indemnitor Representative, as appropriate, shall have 30 days after actual receipt by him or it of the written notice described in Section 11.2(a) to assume the defense object to such Indemnification Claim by delivery of a written notice of such Claim or, having assumed objection to the defense Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost binding acceptance of the Indemnifying PartyIndemnification Claim by the Acquiror, or the defense Indemnitor Representative on behalf of all Shareholder Indemnitors, as appropriate, and settlement of such Claim; provided, however, that (i) the Indemnifying Party Indemnification Claim shall be permitted to join paid in accordance with subsection (d) hereof. If an objection is timely interposed by the defense Acquiror or the Indemnitor Representative, as appropriate, and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested dispute is not resolved by the Indemnitee and (iii) the Acquiror or the Indemnitor Representative, as appropriate, within 15 days after the date the Indemnitee receives such objection, such dispute shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due considerationbe resolved by arbitration as provided in Section 11.12.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days Upon determination of the date on which such obligation becomes final shall thereafter be deemed delinquentamount of an Indemnification Claim, whether by agreement between the Acquiror or the Indemnitor Representative, as appropriate, and the Indemnifying Party Indemnitee or by an arbitration award or by any other final adjudication, the Indemnitors shall pay to the Indemnitee, immediately upon demand, interest at the rate amount of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from such Indemnification Claim within thirty days after the date such payment becomes delinquent amount is determined. Subject to the date terms of the Escrow Agreement, such payment of such delinquent sums, which interest shall be considered made by delivering to be Losses the Indemnitee certificates, duly endorsed for transfer, representing that number of shares of Acquiror Common Stock having a value (based on the IndemniteeClosing Price), rounded to the nearest share, equal to the amount due such Indemnitee hereunder, in each case subject to Sections 11.6 and 11.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event 9.3.1. The party that either party asserts is an indemnifiable event pursuant may be entitled to Section 5.1 or 5.2, the party seeking indemnification indemnity hereunder (the “IndemniteeIndemnified Party”) shall promptly provide give prompt notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification give indemnity hereunder (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability ) of the Indemnifying assertion of any claim, its receipt of a notice threatening a claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party hereunder, and to give notice within thirty (30) days of the failure to provide prompt notice as provided herein will assertion of such claim shall relieve the Indemnifying Party of its obligations hereunder but under this Section 9 only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to has been prejudiced by the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party to such Indemnitee lack of such election so to assume the defense thereof, notice (except that the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the IndemniteeIndemnified Party during the period between (a) thirty (30) days after the assertion of the claim and (b) the date notice was provided to the Indemnifying Party). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in connection with any event within ten (10) days thereof) after the defense thereof other than reasonable costs Indemnified Party’s receipt thereof, copies of investigation; providedall notices and documents (including court papers) received by the Indemnified Party relating to such claim, howeveraction, that if suit or proceeding.
9.3.2. The Indemnifying Party shall have thirty (30) days from the Indemnitee reasonably believes that counsel for receipt of the Notice of Claim (the “Notice Period”) to notify the Indemnified Party (i) whether or not the Indemnifying Party cannot represent both disputes the Indemnitee Indemnifying Party’s liability to the Indemnified Party hereunder with respect to such claim or demand and (ii) if the Indemnifying Party because does not dispute such representation would be reasonably likely to result in a conflict of interestliability, then whether or not the Indemnitee shall have the right to defendIndemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend against such action by all claim or demand, provided that, the Indemnified Party is hereby authorized (but not obligated) prior to and during the Notice Period to file any motion, answer or other pleading which the Indemnified Party shall deem necessary or appropriate proceedingsto protect the Indemnified Party’s interests. The Indemnitee agrees to reasonably cooperate with In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party does not dispute the Indemnifying Party’s obligation to indemnify hereunder and its counsel in desires to defend the defense Indemnified Party against any such asserted liability. In any eventclaim or demand and except as hereinafter provided, the Indemnitee Indemnifying Party shall have the right to defend by appropriate proceedings, which proceedings shall be promptly settled or prosecuted by the Indemnifying Party to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement the Indemnified Party may do so at its own expense in the defense of Indemnified Party’s sole cost and expense. If the Indemnifying Party elects not to defend the Indemnified Party against such asserted liability. No claim or demand, by giving the Indemnified Party timely notice as provided above, then the Indemnified Party, without waiving any rights against the Indemnifying Party, in the defense of may settle or defend against any such claim or litigationin the Indemnified Party’s sole discretion and, shall, except with if it is ultimately determined that the written consent of each Indemnitee, consent Indemnifying Party is responsible therefor under this Section 9 then the Indemnified Party shall be entitled to entry recover from the Indemnifying Party the amount of any settlement or judgment or enter into any settlement that and all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including interest as provided in this Section 9. If the Indemnifying Party does not include as an unconditional term thereof give the release of Indemnified Party notice during the Indemnitee from all Liability in Notice Period that the Indemnifying Party disputes the Indemnifying Party’s liability to the Indemnified Party with respect to such claim or litigation or that does not solely require the payment of money damages by demand, the Indemnifying Person. The Party shall be deemed to be liable for such claim or demand and the Indemnified Party shall be entitled to recover from the Indemnifying Party agrees to afford the Indemnitee amount of any settlement or judgment and its counsel all indemnifiable costs and expenses of the opportunity to be present at, and to participate in, conferences Indemnified Party with all Personsrespect thereto, including any Governmental or Regulatory Authority, asserting any Claim against interest as provided in this Section 9.
9.3.3. If the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall Indemnifying Party has provided the Indemnified Party notice during the Notice Period that the Indemnifying Party disputes the Indemnifying Party’s liability to the Indemnified Party with respect to the claim or demand involving a third-party suit, action, proceeding or investigation, the Indemnifying Party shall not be required to indemnify the Indemnified Party with respect to any amounts paid in settlement of any third-party suit, action, proceeding or investigation entered into without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”)Party; provided, however, that if, at the time a Notice of Claim is submitted to if the Indemnifying Party gives ten (10) days’ prior written notice to the amount Indemnified Party of a settlement offer which the Indemnifying Party desires to accept and to pay all Losses with respect thereto (“Settlement Notice”) and the Indemnified Party fails or refuses to consent to such settlement within ten (10) days after delivery of the Loss Settlement Notice to the Indemnified Party, and such settlement otherwise complies with the provisions of this Section 9.3, the Indemnifying Party shall not be liable for Losses arising from such third-party suit, action, proceeding or investigation in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect excess of the amount of such settlement. Notwithstanding the Lossforegoing, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth shall not settle any Claim without the consent of the Indemnified Party if: (i) the amount of any such settlement exceeds the Loss incurred by Seller Basket, or (ii) the Indemnitee that was settlement will have a material adverse effect on the subject business, operations, assets, properties, prospects or condition (financial or otherwise) of the earlier Notice Indemnified Party.
9.3.4. The Parties shall cooperate in defending any such third-party suit, action, proceeding or investigation, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of Claimthe Indemnified Party that are pertinent to the defense. Such Contest Notice shall specify the reasons or bases for the objection of The Indemnified Party may join the Indemnifying Party in any suit, action, claim or proceeding brought by a third party, as to the claim, and if the objection relates to the amount which any right of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, indemnity created by this Agreement would or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assumemight apply, at the sole cost and expense of the Indemnifying Party, for the defense and settlement purpose of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in enforcing any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views right of the Indemnifying indemnity granted to such Indemnified Party and giving them due considerationpursuant to this Agreement.
(d) The Indemnifying Party shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) If there occurs an event that either party asserts is an indemnifiable event pursuant In order for any Indemnified Party to Section 5.1 or 5.2be entitled to make a claim for indemnification under this Article 10, the party seeking indemnification (the “Indemnitee”) such Indemnified Party shall promptly provide deliver a written notice (the an “Notice of ClaimIndemnification Claim Notice”) to the other party or parties obligated to provide indemnification (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to any Liability , as promptly as reasonably practicable after it acquires knowledge of the Indemnifying fact, event or circumstance giving rise to a claim for Losses pursuant to this Article 10. Each Indemnification Claim Notice shall specify in reasonable detail the nature of, the facts, circumstances and the amount or a good faith estimate (only to the extent ascertainable) of the potential Losses against which such Indemnified Party hereunderseeks indemnification for, such claim asserted, and the provisions of this Agreement upon which such claim for indemnification is made; provided, however, that any failure by such Indemnified Party to provide give such prompt notice as provided herein will Indemnification Claim Notice shall not relieve the Indemnifying Party of its obligations hereunder but indemnification obligations, except and only if to the extent that the Indemnifying Party is actually and materially prejudiced thereby. After delivery of an Indemnification Claim Notice to the Indemnifying Party, (i) the Indemnified Party which has provided such Indemnification Claim Notice shall, upon written request from the Indemnifying Party, supply and make available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) all relevant information in its or its Affiliates’ possession relating to the claim reasonably requested by the Indemnifying Party (except to the extent that such failure materially prejudices action would result in a loss of attorney-client privilege; provided, that such Indemnified Party shall use its commercially reasonable efforts to provide such information in such format to the Indemnifying Party, or on an outside counsel only basis or in such other manner which would not result in the loss of such attorney-client privilege) and (ii) the Indemnified Party shall, and shall cause its Representatives, to (A) be reasonably available to the Indemnifying Party hereunderand its Representatives (at the Indemnifying Party’s cost and expense) during normal business hours to discuss such claim, (B) render to the Indemnifying Party and its Representatives such assistance as may reasonably be requested, (C) provide reasonable access to such properties, facilities, books, records, accountant work papers and other documents or information in their possession or that may be reasonably obtained as the Indemnifying Party and/or its Representatives may reasonably require (at the Indemnifying Party’s cost and expense) (provided, that the accountants of the Indemnified Party shall not be obligated to make any working papers available to the Indemnifying Party or its Representatives unless and until such Party or such Representative, as applicable, has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such accountants), and (D) otherwise cooperate with the Indemnifying Party and its Representatives in good faith (at the Indemnifying Party’s cost and expense). In case Without limiting the foregoing, such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party or its Representatives of books, records and other documents and information which are actually and reasonably relevant to such claim. Upon becoming aware of any such action claim for indemnification under this Article 10, the Indemnifying Party shall not take any steps which might reasonably be expected to damage the commercial interests of the Indemnified Party or its Affiliates without prior approval of the Indemnified Party.
(b) Any claim by an Indemnified Party on account of a Loss which does not result from a Third-Party Claim (a “Direct Claim”) shall be brought against any Indemnitee and it shall provide a asserted by the Indemnified Party by delivering an Indemnification Claim Notice of with respect to such Direct Claim to the Indemnifying Party of the commencement thereofpromptly; provided, however, that any failure by such Indemnified Party to give such prompt Indemnification Claim Notice shall not relieve the Indemnifying Party shall be entitled to participate therein andof its indemnification obligations, except and only to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after notice from the Indemnifying Party is actually and materially prejudiced thereby. The Indemnified Party shall allow the Indemnifying Party and its Representatives to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party as provided in Section 10.6(a). The Indemnifying Party may, [**] receipt of an Indemnification Claim Notice with respect to such Indemnitee Direct Claim, deliver to the Indemnified Party a written response disputing such claim, which response must state in reasonable detail the reasons why the Indemnifying Party disputes such claim, together with reasonable supporting detail. [**].
(c) Save to the extent to which such Direct Claim has previously been satisfied, settled or withdrawn, any Direct Claim by an Indemnified Party shall not be enforceable against the Indemnifying Party and shall be deemed to have been withdrawn unless (except as agreed by the Parties otherwise) proceedings in respect of such election so claim are commenced, subject to assume Section 10.6(d), by the defense thereofIndemnified Party [**] of service of notice of any dispute by the Indemnifying Party pursuant to Section 10.6(b).
(d) Where any Direct Claim by an Indemnified Party relates to a Loss which, at the time that such claim is notified to the Indemnifying Party is a contingent liability, the Indemnifying Party shall not be liable under any obligation to the Indemnitee hereunder for make any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying payment to an Indemnified Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof and unless and until such time as the contingent liability ceases to be contingent and becomes actual and is due and payable. If an Indemnified Party has not yet been determined, such 20 day period in respect of, but only issued a notice in respect of such Direct Claim in accordance with Section 10.6(b) before the amount expiry of the Loss, shall not commence until relevant time periods for making such a further written notice (claim against the “Notice of Liability”) has been sent or delivered by the Indemnitee to the relevant Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss assertedset out in Section 10.1, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth [**] in the Notice of Claim, or subsequent Notice of Liability, Section 10.6(c) shall be deemed established and accepted by to commence upon the Indemnifying Party.
(c) If date which the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) The Indemnifying Party shall make any payment required liability ceases to be made under this Article in cash contingent and on demand. Any payments required to be paid by becomes an Indemnifying Party under this Article that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, actual liability and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemniteeis due and payable.
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