Common use of Assertion of Claim Clause in Contracts

Assertion of Claim. (a) Promptly after the receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any action against him, her or it in respect of which indemnity may be sought against the Banks hereunder (an "Assertion"), such Indemnified Party shall apprise the Banks, through a notice to each of them, of such Assertion. The failure to so notify the Banks shall not relieve the Banks of liability they may have to such Indemnified Party hereunder, except to the extent that failure to give such notice results in material prejudice to the Banks. (b) Any Bank receiving a notice under paragraph (a) shall forward it to the Committee (which, if not in existence, shall be formed at the instance of such Bank to consider the matter). The Banks, through the Committee, shall be entitled to participate in, and to the extent the Banks, through the Committee, elect in writing on thirty days' notice, to assume, the defense of an Assertion, at their own expense, with counsel chosen by them and satisfactory to the Indemnified Party. Notwithstanding that the Banks, through the Committee, shall have elected by such written notice to assume the defense of any Assertion, such Indemnified Party shall have the right to participate in the investigation and defense thereof, with separate counsel chosen by such Indemnified Party, but in such event the fees and expenses of such separate counsel shall be paid by such Indemnified Party and shall not be subject to indemnification by the Banks unless (i) the Banks, through the Committee, shall have agreed to pay such fees and expenses, (ii) the Banks shall have failed to assume the defense of such Assertion and to employ counsel satisfactory to such Indemnified Party, or (iii) in the reasonable judgment of such Indemnified Party, based upon advice of his, her or its counsel, a conflict of interest may exist between the Banks and such Indemnified Party with respect to such Assertion, in which case, if such Indemnified Party notifies the Banks, through the Committee, that such Indemnified Party elects to employ separate counsel at the Banks' expense, the Banks shall not have the right to assume the defense of such Assertion on behalf of such Indemnified Party. Notwithstanding anything to the contrary in this Article VIII, neither the Banks, through the Committee, nor the Indemnified Party shall settle or compromise any action or consent to the entering of any judgment (x) without the prior written consent of the other, which consent shall not be unreasonably withheld, and (y) without obtaining, as an unconditional term of such settlement, compromise or consent, the delivery by the claimant or plaintiff to such Indemnified Party of a duly executed written release of such Indemnified Party from all liability in respect of such Assertion, which release shall be satisfactory in form and substance to counsel to such Indemnified Party. The Funding Corporation shall not be entitled to vote on actions by the Committee under this paragraph (b) or Section 8.08.

Assertion of Claim. If a Claim is asserted or sought to be collected by a third party (a) Promptly after the receipt by an Indemnified “Third Party of notice of the assertion of any claim or the commencement of any action against him, her or it in respect of which indemnity may be sought against the Banks hereunder (an "Assertion"Claim”), such Indemnified Party Indemnitee shall apprise notify the Banks, through Indemnitor by a notice to each Notice of them, of such AssertionClaim. The failure Indemnitee shall enclose with the Notice of Claim a copy of all material papers served with respect to so such Third Party Claim, if any, and any other material documents evidencing such Third Party Claim. The Indemnitor shall have 30 days from the date on which the Indemnitor received the Notice of Claim to notify the Banks shall not relieve Indemnitee that the Banks of liability they may have to such Indemnified Party hereunder, except to the extent that failure to give such notice results in material prejudice to the Banks. Indemnitor (bx) Any Bank receiving a notice under paragraph (a) shall forward it to the Committee (which, if not in existence, shall be formed at the instance of such Bank to consider the matter). The Banks, through the Committee, shall be entitled to participate in, and to the extent the Banks, through the Committee, elect irrevocably acknowledges in writing on thirty days' noticethat such Claim is fully subject to indemnification (without reservation of rights and, to assume, the defense of an Assertion, at their own expense, with counsel chosen by them only thereafter) and satisfactory to the Indemnified Party. Notwithstanding that the Banks, through the Committee, shall have elected by such written notice (y) desires to assume the defense or prosecution of such Third Party Claim and any Assertionlitigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third Party Defense”); provided, however, that Indemnitor shall not be entitled to assume control of the defense of a Third Party Defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if (1) the Third Party Claim relates to or arises in connection with any criminal or quasi-criminal Proceeding; (2) an adverse determination with respect to the Proceeding giving rise to such Indemnified Third Party Claim would be materially detrimental to the Indemnitee’s future business prospects; (3) the Third Party Claim seeks an injunction or equitable relief against the Indemnitee; (4) a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; or (5) Buyer seeks recovery under an applicable insurance policy for the claim, in which case Buyer or the applicable insurer shall have the right to participate control such defense. If the Indemnitor assumes the Third Party Defense in the investigation and defense thereofaccordance herewith, with separate counsel chosen by such Indemnified Party, but in such event the fees and expenses of such separate counsel shall be paid by such Indemnified Party and shall not be subject to indemnification by the Banks unless (i) the BanksIndemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim but the Indemnitor shall control the investigation, through the Committee, shall have agreed to pay such fees defense and expensessettlement thereof, (ii) the Banks shall have failed to assume the defense of such Assertion and to employ counsel satisfactory to such Indemnified Party, or (iii) in the reasonable judgment of such Indemnified Party, based upon advice of his, her or its counsel, a conflict of interest may exist between the Banks and such Indemnified Party with respect to such Assertion, in which case, if such Indemnified Party notifies the Banks, through the Committee, that such Indemnified Party elects to employ separate counsel at the Banks' expense, the Banks Indemnitee shall not have the right to assume the defense of such Assertion on behalf of such Indemnified Party. Notwithstanding anything to the contrary in this Article VIII, neither the Banks, through the Committee, nor the Indemnified Party shall settle or compromise file any action papers or consent to the entering entry of any judgment (x) or enter into any settlement with respect to the Third Party Claim without the prior written consent of the other, which consent shall Indemnitor (not to be unreasonably withheld, conditioned or delayed) and (yiii) the Indemnitor shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without obtainingthe prior written consent of the Indemnitee to the extent such judgment or settlement provides for equitable relief or fails to provide a full and unconditional release of Indemnitee and its Affiliates. The Parties shall use commercially reasonable efforts to minimize Losses from Third Party Claims and will act in good faith in responding to, as an unconditional term defending against, settling or otherwise dealing with such claims. The Parties shall also cooperate in any such defense and give each other reasonable access to all information relevant thereto; provided, that no Party nor any of its Affiliates or their respective Representatives shall be required to provide access to or disclose documents or information where, upon the advice of counsel, such access or disclosure would jeopardize privilege, contravene any applicable Laws or violate any obligation of confidentiality to which such access, documents or information may be subject in discharging their obligations pursuant to this Section 8.5, except where such confidentiality obligation can be remedied by the other Party entering into a separate confidentiality agreement with terms no more restrictive than the confidentiality obligations of such settlement, compromise or consent, the delivery by the claimant or plaintiff to such Indemnified Party of a duly executed written release of such Indemnified Party from all liability in respect of such Assertion, which release shall be satisfactory in form and substance to counsel to such Indemnified Party. The Funding Corporation Whether or not the Indemnitor has assumed the Third Party Defense, such Indemnitor shall not be entitled obligated to vote on actions by indemnify the Committee under this paragraph Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written approval (b) such approval not to be unreasonably delayed or Section 8.08withheld).

Assertion of Claim. (a) Promptly after the receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any action against him, her or it in respect of which indemnity may be sought against the Banks hereunder (an "Assertion"), such Indemnified Party shall apprise the Banks, through a notice to each of them, of such Assertion. The failure to so notify the Banks shall not relieve the Banks of liability they may have to such Indemnified Party hereunder, except to the extent that failure to give such notice results in material prejudice to the Banks. (b) Any Bank receiving a notice under paragraph (a) shall forward it to the Committee (which, if not in existence, shall be formed at the instance of such Bank to consider the matter). The Banks, through the Committee, shall be entitled to participate in, and to the extent the Banks, through the Committee, elect in writing on thirty days' notice, to assume, the defense of an Assertion, at their own expense, with counsel chosen by them and satisfactory to the Indemnified Party. Notwithstanding that the Banks, through the Committee, shall have elected by such written notice to assume the defense of any Assertion, such Indemnified Party shall have the right to participate in the investigation and defense thereof, with separate counsel chosen by such Indemnified Party, but in such event the fees and expenses of such separate counsel shall be paid by such Indemnified Party and shall not be subject to indemnification by the Banks unless (i) the Banks, through the Committee, shall have agreed to pay such fees and expenses, (ii) the Banks shall have failed to assume the defense of such Assertion Xxxxxxxxx and to employ counsel satisfactory to such Indemnified Party, or (iii) in the reasonable judgment of such Indemnified Party, based upon advice of his, her or its counsel, a conflict of interest may exist between the Banks and such Indemnified Party with respect to such Assertion, in which case, if such Indemnified Party notifies the Banks, through the Committee, that such Indemnified Party elects to employ separate counsel at the Banks' expense, the Banks shall not have the right to assume the defense of such Assertion on behalf of such Indemnified Party. Notwithstanding anything to the contrary in this Article VIII, neither the Banks, through the Committee, nor the Indemnified Party shall settle or compromise any action or consent to the entering of any judgment (x) without the prior written consent of the other, which consent shall not be unreasonably withheld, and (y) without obtaining, as an unconditional term of such settlement, compromise or consent, the delivery by the claimant or plaintiff to such Indemnified Party of a duly executed written release of such Indemnified Party from all liability in respect of such Assertion, which release shall be satisfactory in form and substance to counsel to such Indemnified Party. The Funding Corporation shall not be entitled to vote on actions by the Committee under this paragraph (b) or Section 8.08.