Common use of Claims Notice Clause in Contracts

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 2 contracts

Samples: Purchase Agreement, Purchase Agreement (NewStar Financial, Inc.)

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Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b8.4(b), any Buyer Indemnitee, Digital Colony Indemnitee or Seller Indemnitee other indemnified party who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 8.2 (an “Indemnitee”) LA_LAN01:362972.20 shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, promptly after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually materially prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such material information and documents as the Indemnitee has in its possession regarding such claim and all material pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and incurred, including any limitations set forth in this Article VII VIII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day 30-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and then the Indemnifying Party shall be deemed not to have accepted the Loss and the parties Parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then (x) any dispute as to the value of the Loss (if the Indemnifying Party has agreed in writing that such a Loss exists) will be resolved by an independent valuation firm of national standing (the “Valuation Firm”) jointly selected by the Indemnitee and the Indemnifying Party (and, if the Parties are unable to agree upon a Valuation Firm, then the Indemnitee and the Indemnifying Party shall each select an independent valuation firm of national standing, and the two (2) valuation firms so selected shall select a third (3rd) independent valuation firm of national standing to act as the Valuation Firm) and (y) any other dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.119.11. The determination of the dispute by the Valuation Firm shall be final and binding on the Parties hereto, except in the case of manifest error or fraud. The costs of the Valuation Firm shall be allocated between the Indemnitee and the Indemnifying Party by the Valuation Firm in proportion to the extent that either of the Indemnitee or the Indemnifying Party did not prevail on the amount of the disputed Loss as submitted to the Valuation Firm. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII VIII that apply to such Loss) within the thirty (30)-day 30-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VIIVIII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.28.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days promptly after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII VIII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually materially prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, any material information and other materials documents in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.48.4, settle, compromise or defend, at such Indemnifying LA_LAN01:362972.20 Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty ten (3010) days Business Days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, Indemnitee (which shall not be unreasonably withheld, conditioned or delayed delayed), except where such settlement or compromise involves only the payment of money and the full express, complete and unconditional release of any and all claims against the Indemnitee (and liabilities and obligations with respect thereto) and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the sole right, except as provided below in this Section 7.48.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party ClaimClaim (and may control the defense, compromise or settlement of such Third Party Claim only if the Indemnifying Party does not elect to assume such control or is not permitted to assume such control pursuant to the terms of this Section 8.4); provided, however, that (A) if there exists a conflict or is reasonably likely to exist a potential conflict of interest that would make it inappropriate, in the judgment of outside legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, (B) such Third Party Claim (i) is brought by a Governmental Authority in connection with a criminal or if regulatory Proceeding or (ii) primarily seeks (x) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnitee may or (y) a finding or admission of a violation of Law by the Indemnitee that would have available an adverse effect on the Indemnitee other than as a result of monetary damages, (C) the amount in dispute exceeds the maximum amount for which an Indemnifying Party would reasonably be expected to it one or more defenses or counterclaims that are inconsistent with one or more be liable pursuant to this Article VIII in light of the defenses or counterclaims that may be available to the Indemnifying Partylimitations on indemnification herein, if applicable, or (D) if the Indemnifying Party fails to diligently and reasonably defend and prosecute such Third Party Claimsthe Indemnitee, then the Indemnitee shall be entitled to retain one separate counsel of its own counsel in each jurisdiction choosing(in addition to any necessary local counsel), and the Indemnifying Party shall be responsible for the reasonable and documented fees and expenses of such separate counsel, which fees and expenses shall be reimbursed to the Indemnitee determines counsel is required, at the expense of by the Indemnifying PartyParty within thirty (30) days of a request therefor. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An The Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed) if a majority of the aggregate amount of Losses arising from such settlement are to be indemnified by the Indemnifying Party under the terms of this Article VIII (or, if CCOC is the LA_LAN01:362972.20 applicable Indemnifying Party, such Losses are being paid with proceeds from the Buyer Insurance Policy (other than with respect to any Losses (or portion thereof) within the retention under the Buyer Insurance Policy)). (c) With respect to any Losses under Section 7.4(a) and (b)The Indemnifying Parties shall reasonably cooperate with the Indemnitee in connection with Third Party Claims, including, if and as requested by the Indemnitee is Indemnitee, by providing any documents or other information relevant to a Buyer Indemnitee claim for indemnification hereunder, making its directors, officers and other representatives reasonably available in connection with the payment investigation, defense, settlement or compromise of any such claim, and assisting as necessary in connection with the Loss shall be paid as follows: investigation, defense, settlement or compromise thereof. (id) first from Notwithstanding anything to the Escrow Amount (contrary contained herein, to the extent of amounts the procedures in this Section 8.4 are in conflict with the procedures in the Escrow AmountBuyer Insurance Policy with regard to matters such as notice, control, settlement or defense of claims, the procedures in the Buyer Insurance Policy shall control, but this Section 8.4(d) shall not relieve any Buyer Indemnitee from its obligations under this Agreement with respect to CCOC. For the avoidance of doubt, each Party shall and shall cause its agents and advisors to reasonably cooperate with the insurer under the Buyer Insurance Policy in connection with the defense, compromise or settlement of any matter which might reasonably constitute a Loss. The insurer under the Buyer Insurance Policy shall have the right to participate in the defense and settlement of any Third Party Claim or other matter reasonably likely to be covered by the Escrow Agent, without Buyer Insurance Policy to the necessity of further action, as extent so provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cashBuyer Insurance Policy.

Appears in 2 contracts

Samples: Investment Agreement (Colony Capital, Inc.), Investment Agreement (Colony Capital, Inc.)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), If any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 (an the “Indemnitee”) shall give written receives notice of any claim or the commencement of any action or proceeding with respect to each Person from whom such which any Party is obligated to provide indemnification is being claimed (an the “Indemnifying Party”) andpursuant to Section 8.2 (or would be required to provide indemnification if the provisions of Section 8.3 did not apply), if a Buyer the Indemnitee is such Indemnitee, shall promptly deliver to the Escrow Agent Indemnifying Party a written notice (the “Claims Notice”) describing such matter in accordance with reasonable detail, including the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge estimated amount of the factLosses that have been or may be sustained (to the extent that they may be estimated), event or circumstances the facts giving rise to the claim for indemnification hereunder and a reference to the Lossprovision of this Agreement upon which such claim is made, in each case to the extent practicable. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by that the failure to give such notice. Together with such written notice, or delay adversely affects the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding defense of such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.48.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claima third-party claim. If the Indemnifying Party shall elect to settle, compromise or defend so conduct the defense with respect to such asserted liability, then it shall, within thirty fifteen (3015) days after such election (or sooner, if the nature notice of the asserted liability so requires)third-party claim is delivered by the Indemnitee to the Indemnifying Party, notify the Indemnitee of its intention to do so so, and the Indemnitee shall cooperate to the fullest extent possiblereasonably cooperate, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, against such asserted liability; provided, that no settlement or compromise of any Third Party Claim third-party claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by or on behalf of the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on of, the Indemnitee. The If the Indemnifying Party shall have assumes the right, except defense of a claim as provided below for in this Section 7.48.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claimclaim; provided, however, that if there exists or is the Indemnitee shall reasonably likely to exist a conflict determine, upon the advice of interest counsel, that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying PartyParty shall have conflicting or different claims or defenses, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if then the Indemnifying Party fails to diligently defend shall not have control of such conflicting or different claims or defenses and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own appoint a separate counsel in each jurisdiction (but only one (1) counsel for which the such Indemnitee determines counsel is requiredand any related Indemnitees) for such claims and defenses, at the reasonable cost and expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control and that relate to the Indemnifying Party considers necessary or reasonably desirable for the defense of such matter, and shall cooperate in all reasonable ways with, and make its employees and advisors and other personnel reasonably available or otherwise render reasonable assistance to, the Indemnifying Party Indemnitor and its agents. An The Indemnitee may shall not settle file any Third papers or consent to the entry of any judgment or enter into any settlement with respect to any claim for which any Party Claim is obligated to provide indemnification pursuant to this Article VIII without the prior written consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if . Whether or not the Indemnitee is Indemnifying Party has assumed the defense of a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequateclaim, the Indemnifying Party shall thereupon pay will not be obligated to indemnify the Indemnitee for all indemnifiable Losses, on demand, in cashhereunder with respect to any settlement entered into or any judgment consented to without the Indemnifying Party’s prior written consent.

Appears in 2 contracts

Samples: Purchase Agreement (Fly Leasing LTD), Purchase Agreement (Fly Leasing LTD)

Claims Notice. (a) Except with respect In the event that either Purchaser or LLANY or one of the Sellers wishes to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make assert a claim for indemnification for hereunder (including, but not limited to, claims arising from a claim or demand made, or an action, proceeding or investigation instituted, by any Person not a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification is claimed under this Article IX (an “Indemnitee”a "Third Party Claim")), such party seeking indemnification (the "Indemnified Party") shall give written notice (a "Claims Notice") to each Person from whom such indemnification is being claimed the other party (an “the "Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, "). Such Claims Notice shall be delivered to the Escrow Agent Indemnifying Party as promptly as practicable, specifying in accordance with detail the Escrow Agreement, promptlyfacts constituting the basis for, and in any event no later than five (5) Business Daysthe amount of, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Lossasserted. The failure by any Indemnified Party to make timely delivery of such written notice shall not affect notify the Indemnifying Party’s Party as promptly as practicable shall relieve any Indemnifying Party from its indemnification obligations hereunder, except only to the extent such Indemnifying failure or other actions taken by the Indemnified Party is actually prejudiced by failure in response to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall actually prejudice an Indemnifying Party; provided however, that notwithstanding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The foregoing, an Indemnifying Party shall have no obligations to indemnify an Indemnified Party if a period of thirty (30) days after receipt Claims Notice containing the information specified above is not received by the Indemnifying Party prior to the termination of the applicable periods described in Sections 8.01(a) and 8.01(c). (b) Subject to the provisions of Section 9.02(c), upon receipt of a Claims Notice the Indemnifying Party shall have the right to assume the defense and control of Third Party Claims. In the event the Indemnifying Party exercises such rights to assume the defense and control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation reasonably to participate in (but not control) the defense of Third Party Claims with its own counsel and at its own expense. Any election by an Indemnifying Party whether to assume the defense of a Third Party Claim must be received by the Indemnified Party within a reasonable time period after receipt of the Indemnified Party's Claims Notice, and failure to send such notice and such evidence within a reasonable time shall be deemed an election not to agree to the payment of the Loss to the Indemnitee, subject to such limitationsdefend. If the Indemnifying Party does not agree elects to assume the payment defense of the Loss within such thirty (30)-day perioda Third Party Claim, the Indemnifying Party shall simultaneously deliver a notice to select counsel, contractors and consultants of recognized standing and competence after consultation with the Indemnified Party; shall take all steps necessary in the defense or settlement of such Third Party and, if a Seller is Claims; and shall at all times diligently and promptly pursue the resolution of such Indemnifying Party, to the Escrow Agent in accordance with the Escrow AgreementThird Party Claims. The Indemnified Party shall, and shall cause each of its directors, officers, employees, agents, representatives, Affiliates and permitted assigns to, cooperate fully with the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim defended by the Indemnifying Party, which cooperation shall include, without limitation, designating a liaison counsel to whom the Indemnifying Party may direct notices and other communications, using reasonable efforts to make witnesses available, and providing records and documents to the extent such witnesses, records and documents are relevant to the Third Party Claim. (c) The Indemnifying Party shall be made authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 9.02(b), without the consent of any Indemnified Party, but only to the extent that such settlement or entry of judgment (i) provides solely for the payment of money, and (ii) provides a complete release of, or dismissal with prejudice of claims against, any Indemnified Party potentially affected by such Third Party Claim from all matters that were or could have been asserted in connection with such claims. In the event that either Seller is the Indemnifying Party, the amounts of any settlement or judgment paid by such Seller in connection with Third Party Claims arising out of Sellers' Extra Contractual Obligations or misrepresentations and breaches of warranty referred to in Section 9.01(a)(i) shall be applied against the applicable deductibles set forth in Section 9.05(a)(i) hereof. Further, Purchaser shall pay, or shall reimburse Sellers for, the amount of such settlement or judgment to the extent that the applicable deductibles as described in Section 9.05(a)(i) have not been exhausted. In the event that Purchaser or LLANY is the Indemnifying Party, the amounts of any settlement or judgment paid by Purchaser or LLANY in connection with Third Party Claims arising out of misrepresentations and breaches of warranty referred to in Section 9.01(b)(i) shall be applied against the deductible amount set forth in Section 9.05(a)(ix) hereof. Further, the relevant Seller shall pay, or shall reimburse Purchaser or LLANY for, the amount of such settlement or entry of judgment to the extent that the deductible as described in Section 9.05(a)(ix) has not been exhausted. Except as provided above, settlement or consent to entry of judgment shall require the prior approval of the Indemnified Party, such approval not to be unreasonably withheld. If requested by the Indemnifying Party, the Indemnified Party will cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim or cross-complaint against any Person (other than the Indemnified Party or its directors, officers, employees, agents, representatives, Affiliates, successors and permitted assigns). In the event that either Seller is the Indemnifying Party and such Seller declines to assume the defense of a Third Party Claim arising out of Sellers' Extra Contractual Obligations or misrepresentations and breaches of warranty referred to in Section 9.01(a)(i), any costs or expenses incurred by Purchaser in connection with such Third Party Claims and Sellers' Extra Contractual Obligations shall be applied against the applicable deductible set forth in Section 9.05(a)(i) hereof. Further, Purchaser also shall pay, or shall reimburse Sellers for, the amount of such settlement or judgment to the extent that the applicable deductibles as described in Section 9.01(a)(i) have not been exhausted. In the event that Purchaser or LLANY is the Indemnifying Party and declines to assume the defense of a Third Party Claim arising out of misrepresentations and breaches of warranty referred to in Section 9.01(b)(i), any costs or expenses incurred by the relevant Seller in connection with such Third Party Claims shall be applied against the deductible amount set forth in Section 9.05(a)(ix) hereof. Further, the relevant Seller also shall pay, or shall reimburse Purchaser or LLANY for, any amounts paid or to be paid by Purchaser or LLANY in connection with any such settlement or entry of judgment to the extent that the deductible as described in Section 9.05(a)(ix) has not been exhausted. Unless and until the Indemnifying Party elects to defend the Third Party Claim, the Indemnified Party shall have the right, at its option and at the Indemnified Party's expense to do so in such manner as it reasonably deems appropriate; provided, however, that Indemnified Party shall not settle or compromise any Third Party Claim for which it seeks indemnification hereunder without the prior written consent of the Indemnitee, Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party). (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Asset Purchase Agreement (Aetna Life Insurance & Annuity Co /Ct)

Claims Notice. (a) Except with respect If either Reinsurer or Cedant wishes to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make assert a claim for indemnification for hereunder, including, but not limited to, claims arising from a claim or demand made, or an action, proceeding or investigation instituted, by any Person not a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification is or may be claimed under this Article X (an a IndemniteeThird Party Claim”), the party seeking indemnification (the “Indemnified Party”) shall give written notice (a “Claims Notice”) to each Person from whom such indemnification is being claimed the other party (an the “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, ). The Claims Notice shall be delivered to the Escrow Agent Indemnifying Party as promptly as practicable, specifying in accordance with detail the Escrow Agreement, promptlyfacts constituting the basis for, and in any event no later than five (5) Business Daysthe estimated amount of, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Lossindemnification so asserted. The failure by any Indemnified Party to make timely delivery of such written notice shall not affect provide the Claims Notice to the Indemnifying Party’s Party as promptly as practicable shall relieve any Indemnifying Party from its indemnification obligations hereunder, except only to the extent that such failure shall actually prejudice an Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written noticeParty; provided however , that, notwithstanding the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The foregoing, an Indemnifying Party shall have no obligation to indemnify an Indemnified Party if a period of thirty (30) days after receipt Claims Notice containing the information specified above is not received by the Indemnifying Party of such notice and such evidence to agree prior to the payment termination of the Loss applicable survival periods described in Sections 10.01(a) and 10.01(b). (b) Subject to the Indemniteeprovisions of Section 10.02(c) hereof, subject to such limitations. If the Indemnifying Party does not agree to the payment upon receipt of the Loss within such thirty (30)-day perioda Claims Notice, the Indemnifying Party shall simultaneously deliver have the right to assun1e the defense and control of a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect exercises its right to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if assume the nature defense and control of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any a Third Party Claim shall be made without Claim, the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Indemnified Party shall have the right, except as provided below in this Section 7.4but not the obligation, to conduct participate in (but not control) the defense of the Third Party Claim with its own counsel and control at its own expense. Any election by an Indemnifying Party to assume the defense of a Third Party Claim must be received by the Indemnified Party within a reasonable time after receipt of the Indemnified Party’s Claims Notice, and failure to make such election within a reasonable time shall be deemed an election not to defend. If the Indemnifying Party elects to assume the defense of a Third Party Claim, the Indemnifying Party shall select counsel, contractors and consultants of recognized standing and competence after consultation with the Indemnified Party, shall take all steps necessary in the defense or settlement of such Third Party Claim, and shall at all times diligently and promptly pursue the resolution of such Third Party Claim. The Indemnified Party shall, and shall cause each of its directors, officers, employees, agents, representatives, Affiliates, successors and permitted assigns to, cooperate fully with the Indemnifying Party in the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne Claim defended by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee in making any appropriate counterclaim or cross-complaint, which cooperation shall include, without limitation, designating a liaison counsel to whom the Indemnifying Party may not settle any Third Party Claim without direct notices and other communications, using reasonable efforts to make witnesses available for deposition and trial, and providing records and docun1ents to the consent of extent such witnesses, records and documents to the extent reasonably requested by the Indemnifying Party. (c) With respect The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any Losses under judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 7.4(a10.02(b) and without the consent of any Indemnified Party, but only to the extent that such settlement or entry of judgment (b), if the Indemnitee is a Buyer Indemnitee i) provides solely for the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agentmoney, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i)provides a complete release of, if the funds or dismissal with prejudice of claims against, any Indemnified Party potentially affected by such Third Party Claim from all matters that were or could have been asserted in the Escrow Amount are inadequate, connection with such Third Party Claim. If the Indemnifying Party elects, or is deemed to have elected, not to defend a Third Party Claim, the Indemnified Party shall thereupon pay have the Indemnitee right, at its option and at the Indemnified Party’s expense, to defend such Third Party Claim in such manner as it reasonably deems appropriate; provided, however, that Indemnified Party shall not settle or compromise any Third Party Claim for all indemnifiable Losses, on demand, in cashwhich it seeks indemnification hereunder without the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld).

Appears in 1 contract

Samples: Master Reinsurance Agreement (Midwest Holding Inc.)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for Promptly after the Person seeking indemnification for a Loss pursuant to Section 7.2 11.02 (an the “Indemnitee”) has knowledge of any event or circumstance that would reasonably be expected to give rise to indemnification under this Article XI that does not involve a Third-Party Claim (as defined below) (a “Direct Claim”) or receives notice of the assertion or commencement of any claim by a third party that would reasonably be expected to give rise to indemnification under this Article XI (a “Third-Party Claim”), the Indemnitee shall give written notice deliver to each the Person from whom such which indemnification is being claimed sought (an the “Indemnifying Party”) anda written notice (a “Claim Notice”) setting forth in reasonable detail a description of the matter giving rise to indemnification hereunder, including, if known, the anticipated Losses; provided, however, that any failure or delay by the Indemnitee in delivering a Buyer Indemnitee is such Indemnitee, Claim Notice to the Escrow Agent in accordance with Indemnifying Party shall not affect the Escrow AgreementIndemnitee’s right to indemnification under this Article XI, promptlyexcept to the extent the Indemnifying Party has been materially prejudiced by such failure or delay. (b) Promptly, and but in any event no later than five twenty (520) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of a Claim Notice of a Third-Party Claim (unless the Third-Party Claim requires a response before the expiration of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty twenty (30)-day 20) Business Day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event case no later than ten (10) Business Days after days before the required response), such Indemnitee has knowledge of an assertion of liability from such third partyIndemnifying Party may, deliver at its option and subject to the Indemnifying Party a written notice describing, providing an Indemnification Acknowledgement to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to assume the other provisions defense of this Section 7.4, settle, compromise or defend, at the Indemnitee against such claim (including the employment of counsel of the Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of choosing that is reasonably acceptable to the Indemnitee in respect (the party conducting the defense of such Third-Party Claim is referred to herein as the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so “Controlling Party” and the Indemnitee shall cooperate other party is referred to herein as the fullest extent possible“Non-Controlling Party”). The Non-Controlling Party, at the request and reasonable expense of the Indemnifying Party, shall reasonably cooperate in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without claim. Except with the prior written consent of the Indemnitee, which shall such consent not to be unreasonably withheld, conditioned or delayed except where such settlement delayed, no Indemnifying Party shall settle or compromise involves only the payment any Third-Party Claim or permit a default judgment or consent to an entry of judgment unless such settlement, compromise or judgment (i) relates solely to money and the full release of any and all claims against the Indemnitee and only damages to the extent that such money is be paid entirely by the Indemnifying Party, (ii) provides for a full, unconditional and irrevocable release by such third party of each Indemnitee, (iii) does not contain any admission or finding of wrongdoing on behalf of the Indemnitee, and (iv) does not impose any restriction on the Indemnitee or any injunctive or equitable relief against the Indemnitee. The Until the Indemnifying Party shall have so assumed the defense of the Indemnitee against such claim following the delivery of such Claim Notice, the Indemnitee may, but shall not be released from any obligation to indemnify obligated to, undertake the Indemnitee hereunder defense of such claim on behalf of and for the account and risk of the Indemnifying Party; provided, that (x) such Indemnitee, except with respect to such asserted claim without the prior written consent of the IndemniteeIndemnifying Party, unless such consent not to be unreasonably withheld, conditioned or delayed, shall not settle or compromise any Third-Party Claim or permit a default judgment or consent to an entry of judgment, and (y) if such Indemnitee is entitled to indemnification under this Article XI (as determined by an agreement of the Indemnifying Party shall deliver to parties or by a final and non-appealable judgment of a court of competent jurisdiction), all reasonable out-of-pocket legal and other expenses reasonably incurred by the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee Any Non-Controlling Party shall have the right to employ separate counsel in any such action or claim and to participate in, but not control, in the defense thereof either (I) at its own expenseexpense or (II) at the Indemnifying Party’s cost and expense if (1) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, (2) on the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment reasonable advice of legal counsel to the Indemnitee, for the same counsel to represent both a conflict or potential conflict of interest exists between the Indemnitee and the Indemnifying Party, Party that would make such separate representation advisable or if the Indemnitee may have available to it (3) one or more defenses or counterclaims are available to the Indemnitee that are inconsistent with one or more of the defenses or counterclaims that may be not available to the Indemnifying Party. After any such claim has been filed or initiated, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee party shall make available to the Indemnifying Party any booksother parties and their attorneys and accountants all reasonably pertinent information under its control relating to such claim which is made available under the terms of a confidentiality agreement or similar protective measures, records or and the parties agree to render to each other documents within its direct or indirect control that relate such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense of any such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Partyclaim. (c) With respect Notwithstanding anything in this Section 11.03 to any Losses under Section 7.4(a) and (b)the contrary, if the Indemnitee is a Buyer Indemnitee one or more Purchaser Indemnitee, then Purchaser (or another Purchaser Indemnitee) will have the payment right to conduct and control, through counsel of its choosing, the Loss shall be paid as follows: defense, compromise and settlement of any Third-Party Claim that (i) first from the Escrow Amount (to the extent involves any possibility of amounts in the Escrow Amount) criminal liability or any action by the Escrow Agentany Governmental Entity against any Purchaser Indemnitee, without the necessity of further action, as provided in the Escrow Agreement and (ii) involves any material customer or material supplier of the Company or any of its Subsidiaries, (iii) seeks injunctive relief, specific performance or other equitable relief against any of the Purchaser Indemnitees, (iv) the insurer under the R&W Insurance Policy exercises a right to defend or control such Third-Party Claim, (v) involves any claim or Proceeding with respect to Taxes (provided, that the parties’ rights with respect to claims or Legal Proceedings relating to Pre-Closing Tax Periods shall be governed by and subject to the provisions of Section 7.3(a)(i10.02(g)), or (vi) if determined adversely to any of the funds Purchaser Indemnitees, could (together with all other pending claims) reasonably be expected to result in Losses to the Escrow Amount are inadequate, Purchaser Indemnitees in an amount that is more than 1.33 times the maximum amount that the Indemnifying Party shall thereupon pay would be responsible for after application of the Indemnitee for all indemnifiable Losses, limitations on demand, indemnification in cashthis Agreement (including the Basket Amount and the Indemnity Cap).

Appears in 1 contract

Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)

Claims Notice. (a) Except with respect In the event that either Purchaser or LLANY or one of the Sellers wishes to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make assert a claim for indemnification for hereunder (including, but not limited to, claims arising from a claim or demand made, or an action, proceeding or investigation instituted, by any Person not a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification is claimed under this Article IX (an “Indemnitee”a "Third Party Claim")), such party seeking indemnification (the "Indemnified Party") shall give written notice (a "Claims Notice") to each Person from whom such indemnification is being claimed the other party (an “the "Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, "). Such Claims Notice shall be delivered to the Escrow Agent Indemnifying Party as promptly as practicable, specifying in accordance with detail the Escrow Agreement, promptlyfacts constituting the basis for, and in any event no later than five (5) Business Daysthe amount of, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Lossasserted. The failure by any Indemnified Party to make timely delivery of such written notice shall not affect notify the Indemnifying Party’s Party as promptly as practicable shall relieve any Indemnifying Party from its indemnification obligations hereunder, except only to the extent such Indemnifying failure or other actions taken by the Indemnified Party is actually prejudiced by failure in response to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall actually prejudice an Indemnifying Party; provided however, that notwithstanding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The foregoing, an Indemnifying Party shall have no obligations to indemnify an Indemnified Party if a period of thirty (30) days after receipt Claims Notice containing the information specified above is not received by the Indemnifying Party prior to the termination of the applicable periods described in Sections 8.01(a) and 8.01(c). (b) Subject to the provisions of Section 9.02(c), upon receipt of a Claims Notice the Indemnifying Party shall have the right to assume the defense and control of Third Party Claims. In the event the Indemnifying Party exercises such rights to assume the defense and control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation reasonably to participate in (but not control) the defense of Third Party Claims with its own counsel and at its own expense. Any election by an Indemnifying Party whether to assume the defense of a Third Party Claim must be received by the Indemnified Party within a reasonable time period after receipt of the Indemnified Party's Claims Notice, and failure to send such notice and such evidence within a reasonable time shall be deemed an election not to agree to the payment of the Loss to the Indemnitee, subject to such limitationsdefend. If the Indemnifying Party does not agree elects to assume the payment defense of the Loss within such thirty (30)-day perioda Third Party Claim, the Indemnifying Party shall simultaneously deliver a notice to select counsel, contractors and consultants of recognized standing and competence after consultation with the Indemnified Party; shall take all steps necessary in the defense or settlement of such Third Party and, if a Seller is Claims; and shall at all times diligently and promptly pursue the resolution of such Indemnifying Party, to the Escrow Agent in accordance with the Escrow AgreementThird Party Claims. The Indemnified Party shall, and shall cause each of its directors, officers, employees, agents, representatives, Affiliates and permitted assigns to, cooperate fully with the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim defended by the Indemnifying Party, which cooperation shall include, without limitation, designating a liaison counsel to whom the Indemnifying Party may direct notices and other communications, using reasonable efforts to make witnesses available, and providing records and documents to the extent such witnesses, records and documents are relevant to the Third Party Claim. (c) The Indemnifying Party shall be made authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 9.02(b), without the consent of any Indemnified Party, but only to the extent that such settlement or entry of judgment (i) provides solely for the payment of money, and (ii) provides a complete release of, or dismissal with prejudice of claims against, any Indemnified Party potentially affected by such Third Party Claim from all matters that were or could have been asserted in connection with such claims. In the event that either Seller is the Indemnifying Party, the amounts of any settlement or judgment paid by such Seller in connection with Third Party Claims arising out of Sellers' Extra Contractual Obligations or misrepresentations and breaches of warranty referred to in Section 9.01(a)(i) shall be applied against the applicable deductibles set forth in Section 9.05(a)(i) hereof. Further, Purchaser shall pay, or shall reimburse Sellers for, the amount of such settlement or judgment to the extent that the applicable deductibles as described in Section 9.05(a)(i) have not been exhausted. In the event that Purchaser or LLANY is the Indemnifying Party, the amounts of any settlement or judgment paid by Purchaser or LLANY in connection with Third Party Claims arising out of misrepresentations and breaches of warranty referred to in Section 9.01(b)(i) shall be applied against the deductible amount set forth in Section 9.05(a)(ix) hereof. Further, the relevant Seller shall pay, or shall reimburse Purchaser or LLANY for, the amount of such settlement or entry of judgment to the extent that the deductible as described in Section 9.05(a)(ix) has not been exhausted. Except as provided above, settlement or consent to entry of judgment shall require the prior approval of the Indemnified Party, such approval not to be unreasonably withheld. If requested by the Indemnifying Party, the Indemnified Party will cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim or cross-complaint against any Person (other than the Indemnified Party or its directors, officers, employees, agents, representatives, Affiliates, successors and permitted assigns). In the event that either Seller is the Indemnifying Party and such Seller declines to assume the defense of a Third Party Claim arising out of Sellers' Extra Contractual Obligations or misrepresentations and breaches of warranty referred to in Section 9.01(a)(i), any costs or expenses incurred by Purchaser in connection with such Third Party Claims and Sellers' Extra Contractual Obligations shall be applied against the applicable deductible set forth in Section 9.05(a)(i) hereof. Further, Purchaser also shall pay, or shall reimburse Sellers for, the amount of such settlement or judgment to the extent that the applicable deductibles as described in Section 9.05(a)(i) have not been exhausted. In the event that Purchaser or LLANY is the Indemnifying Party and declines to assume the defense of a Third Party Claim arising out of misrepresentations and breaches of warranty referred to in Section 9.01(b)(i), any costs or expenses incurred by the relevant Seller in connection with such Third Party Claims shall be applied against the deductible amount set forth in Section 9.05(a)(ix) hereof. Further, the relevant Seller also shall pay, or shall reimburse Purchaser or LLANY for, any amounts paid or to be paid by Purchaser or LLANY in connection with any such settlement or entry of judgment to the extent that the deductible as described in Section 9.05(a)(ix) has not been exhausted. Unless and until the Indemnifying Party elects to defend the Third Party Claim, the Indemnified Party shall have the right, at its option and at the Indemnified Party's expense to do so in such manner as it reasonably deems appropriate; provided, however, that Indemnified Party shall not settle or compromise any Third Party Claim for which it seeks indemnification hereunder without the prior written consent of the Indemnitee, Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party). (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Asset Purchase Agreement (Lincoln National Corp)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for Promptly after the Person seeking indemnification for a Loss pursuant to Section 7.2 4.2 (an the IndemniteeIndemnified Party”) has knowledge of any event or circumstance, including any written claim by a third party, that would reasonably be expected to give rise to indemnification under this Article IV (a “Third-Party Claim”), the Indemnified Party shall give written notice deliver to each the Person from whom such which indemnification is being claimed sought (an the “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent notice (a “Claim Notice”) setting forth in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge reasonable detail a description of the fact, event or circumstances matter giving rise to indemnification hereunder, including, if known, the claim for the Loss. The failure to make timely delivery anticipated Losses (it being understood that any estimate of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, Losses if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which provided shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent conclusive of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred final amount with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party ClaimLosses); provided, however, that if there exists any failure or is reasonably likely to exist delay by the Indemnified Party in delivering a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available Claim Notice to the Indemnifying Party shall not affect the Indemnified Party’s right to indemnification under this Article IV, or if except to the extent the Indemnifying Party fails has been prejudiced by such failure or delay. (b) The following provisions shall apply to diligently defend any Third-Party Claim: (i) The Company shall have the right to control the defense, prosecution and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is requiredresolution of, at the expense of the Indemnifying Party, any Third-Party Claim brought against any member of the Company Group (the Company is referred to herein as the “Controlling Party” and the other Party is referred to herein as the “Non-Controlling Party”). If The Non-Controlling Party shall cooperate with and make available to the Controlling Party such assistance and materials as may be reasonably requested by the Controlling Party (at the expense of the Indemnifying Party) in any Third-Party Claim. The Indemnified Party and Indemnifying Party shall each have the right to employ separate counsel in any Third-Party Claim and to participate in (but not control) the defense thereof either (I) at its own expense or (II) at the Indemnifying Party’s cost and expense (so long as such fees are reasonable and such counsel is approved by the Indemnifying Party not to be unreasonably withheld or delayed) if (1) in the reasonable opinion of counsel to the Indemnified Party, a conflict of interest or potential conflict exists between the Indemnified Party and the Indemnifying Party under applicable standards of professional conduct or (2) one or more defenses are available to the Indemnified Party that are not available to the Indemnifying Party (provided that, in the case of clauses (1) or (2), the Indemnifying Party shall choose not be liable for the fees and expenses of more than one firm of counsel for all Indemnified Parties, other than local counsel, in any action or claim or group of related actions or claims). The Controlling Party shall not admit any liability with respect to, or settle, compromise or discharge, a Third-Party Claim without the prior written consent of the Indemnified Party, unless such admission, settlement, compromise or discharge (A) obligates the Indemnifying Party to defend pay the full amount of the liability in connection with such Third-Party Claim, (B) releases the Indemnified Party completely in connection with such Third-Party Claim, (C) does not contain any claimadmission of wrongdoing or misconduct by the Indemnified Party and (D) does not involve any injunction or other equitable relief or relief for other than money damages against the Indemnified Party. (ii) In the event the Company does not agree or assume the defense of the Third-Party Claim via a written notice delivered to the Indemnifying Party and the Indemnified Party within fifteen (15) days of the receipt of the Claim Notice, then the Indemnitee Indemnified Party shall have the right to conduct a defense against such Third-Party Claim at the expense of the Indemnifying Party and shall have the right to settle and compromise such Third-Party Claim if it acts reasonably and in good faith upon ten (10) days’ notice to, and with the consent of, the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). (iii) After any such claim has been filed or initiated, each Party shall make available to the Indemnifying Party any booksother Parties and their attorneys and accountants all pertinent information under its control relating to such claim which is made available under the terms of a confidentiality agreement or similar protective measures, records or and the Parties agree to render to each other documents within its direct or indirect control that relate such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense of any such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Partyclaim. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Investment Agreement (Hamilton Lane INC)

Claims Notice. (a) Except with respect In the event that any Reinsurer Indemnified Party or Ceding Company Indemnified Party elects to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make assert a claim for indemnification for hereunder arising from a claim or demand made, or an Action or investigation instituted, by any Person not a party to this Agreement or an Affiliate of a party to this Agreement that may result in a Loss pursuant to Section 7.2 (an “Indemnitee”) shall give written notice to each Person from whom such for which indemnification is being may be claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in under this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty XVII (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”), such party seeking indemnification (the “Indemnified Party”) shall, as promptly as practicable give written notice (a “Claims Notice”) to the other party (the “Indemnifying Party”). Such Claims Notice shall specify in reasonable detail the facts constituting the basis for, and the amount of, the claim asserted. The failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall relieve the Indemnifying Party of its indemnification obligations to the extent such failure or other actions taken by the Indemnified Party shall actually prejudice an Indemnifying Party; provided, however, that an Indemnifying Party shall have no obligation whatsoever to indemnify an Indemnified Party if a Claims Notice containing the information specified above is not received by the Indemnifying Party prior to the termination of the applicable periods described in Section 16.05. (b) Subject to the provisions of Section 17.02(c), upon receipt of a Claims Notice, the Indemnifying Party shall have the right to assume the defense and control of Third Party Claims. In the event the Indemnifying Party exercises such right to assume the defense and control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation reasonably to participate in (but not control) the defense of Third Party Claims with respect its own counsel and at its own expense unless (i) the Indemnifying Party and Indemnified Party shall have mutually agreed in writing to the retention of the same counsel, or (ii) the named parties to any such Third Party Claim (including any impleaded parties) include the Indemnifying Party and Indemnified Party and representation of both parties by the same counsel would, in the opinion of counsel to such Indemnified Party, be impermissible under the applicable code of professional responsibility due to actual or potential differing interests between the Indemnifying Party and Indemnified Party, including situations in which such Indemnitee is entitled there are one or more legal defenses available to the Indemnified Party that are different from, or additional to, and wishes tothose available to the Indemnifying Party, make in which case the Indemnifying Party will bear such expense of the Indemnified Party. Any election by an Indemnifying Party to assume the defense of a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten Third 46753330.38 Party Claim must be delivered by the Indemnifying Party to the Indemnified Party within thirty (1030) Business Days after such Indemnitee has knowledge receipt of an assertion the Indemnified Party’s Claims Notice, and failure on the part of liability from such third party, deliver to the Indemnifying Party a written to deliver such notice describing, within such thirty (30) Business Day period shall be deemed an election not to assume the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery defense of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect elects to settle, compromise or defend such asserted liabilityassume the defense of a Third Party Claim, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Indemnified Party shall not be released from any obligation to indemnify the Indemnitee hereunder reasonably cooperate with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely . (c) The Indemnified Party shall not consent to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Partysettlement of, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more entry of the defenses or counterclaims that may be available to the Indemnifying Partyany judgment arising from, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 17.02(b), without the consent of any Indemnified Party., but only to the extent that: (ci) With respect to such settlement or entry of judgment (A) does not involve any Losses under Section 7.4(a) finding or admission of any violation of applicable Law or admission of any wrongdoing by the Indemnified Party; and (b), if the Indemnitee is a Buyer Indemnitee B) provides solely for the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and money; and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon (A) pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the Indemnitee effectiveness of such settlement; (B) not encumber any of the assets of the Indemnified Party or agree to any restriction or condition that would apply to or adversely affect the Indemnified Party; and (C) obtain, as a condition of any settlement or other resolution, a complete and unconditional release of the Indemnified Party from any and all liability in respect of such Third Party Claim. (d) In the event that any Indemnified Party elects to bring a claim that does not involve a Third Party Claim for all indemnifiable Lossesindemnity against any Indemnifying Party, on demandthe Indemnified Party shall deliver written notice of such claim to the Indemnifying Party as promptly as practicable. Such notice shall specify in reasonable detail the facts constituting the basis for, and the amount of, the claim asserted. The failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall relieve the Indemnifying Party of its indemnification obligation to the extent such failure or other action taken by the Indemnified Party shall actually prejudice the Indemnifying Party; provided, however, that an Indemnifying Party shall have no obligation whatsoever to indemnify an Indemnified Party if the written notice described in cashthis Section 17.02(d) is not received by the Indemnifying Party prior to the termination of the applicable periods described in Section 16.05.

Appears in 1 contract

Samples: Funds Withheld Coinsurance Agreement (National Western Life Group, Inc.)

Claims Notice. Each party hereto (aan "Indemnified Party") Except with respect to Third Party Claims covered by Section 7.4(b)shall, promptly upon becoming aware of any Buyer Indemnitee event or Seller Indemnitee who is entitled tocircumstance (an "Indemnifiable Event") which, and wishes toin his or its reasonable judgment, make a claim for indemnification for may result in a Loss pursuant to Section 7.2 for which the Indemnified Party could assert a right of indemnification against any other party (an “Indemnitee”or parties) shall give written notice to each Person from whom such indemnification is being claimed hereto (an “the "Indemnifying Party") andunder this Article 8, if a Buyer Indemnitee is such Indemnitee, give notice thereof (the "Claims Notice") to the Escrow Agent in accordance with Indemnifying Party (but the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge obligations of the fact, event or circumstances giving rise to Indemnifying Party under this Article 8 shall not be impaired by the claim for the Loss. The Indemnified Party's failure to make timely delivery of give such written notice shall not affect the Indemnifying Party’s obligations hereundernotice, except to the extent such Indemnifying Party is that said failure actually prejudiced by failure to give such notice. Together with such written notice, prejudices the Indemnitee shall provide rights of the Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in reasonable detail, shall indicate whether the Indemnifiable Event involves a "Third Party with such information Claim" (defined below), and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall indicate the amount (estimated, if necessary) of the Loss that it asserts it has sustained been or incurred and any limitations set forth in this Article VII that apply to may be suffered by the Indemnified Party. In such Loss. The event, the Indemnifying Party shall have a period of thirty shall, within fifteen (3015) business days after receipt by of the Indemnifying Claims Notice, give notice to the Indemnified Party of such notice and such evidence whether he or it intends to agree to dispute the payment of claim described in the Loss to Claims Notice (the Indemnitee, subject to such limitations"Response Notice"). If the Indemnifying Party does not agree to timely disputes the payment of the Loss within such thirty (30)-day periodClaims Notice as provided above, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andshall, if for a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed period of not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within more than fifteen (15) business days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment after receipt of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election Response Notice (or soonerless, if the nature of the asserted liability Indemnifiable Event so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense seek out a negotiated settlement of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder dispute with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agentsshall refrain during that period from commencing any judicial proceeding or other action to enforce this Article 8. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b)If, if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agentdespite their good faith negotiations, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.the

Appears in 1 contract

Samples: Share Exchange Agreement (Wall Street Strategies Corp)

Claims Notice. (a) Except with respect In the event that any Reinsurer Indemnified Party or Company Indemnified Party elects to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make assert a claim for indemnification for hereunder arising from a claim or demand made, or an Action or investigation instituted, by any Person not a party to this Agreement or an Affiliate of a party to this Agreement that may result in a Loss pursuant to Section 7.2 (an “Indemnitee”) shall give written notice to each Person from whom such for which indemnification is being may be claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in under this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty XV (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”), such party seeking indemnification (the “Indemnified Party”) shall, as promptly as practicable give written notice (a “Claims Notice”) to the other party (the “Indemnifying Party”). Such Claims Notice shall specify in reasonable detail the facts constituting the basis for, and the amount of, the claim asserted. The failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall relieve the Indemnifying Party of its indemnification obligations to the extent such failure or other actions taken by the Indemnified Party shall actually prejudice an Indemnifying Party; provided, however, that an Indemnifying Party shall have no obligation whatsoever to indemnify an Indemnified Party if a Claims Notice containing the information specified above is not received by the Indemnifying Party prior to the termination of the applicable periods described in Section 14.4. (b) Subject to the provisions of Section 15.3(c), upon receipt of a Claims Notice, the Indemnifying Party shall have the right to assume the defense and control of Third Party Claims. In the event the Indemnifying Party exercises such right to assume the defense and control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation reasonably to participate in (but not control) the defense of Third Party Claims with respect its own counsel and at its own expense unless (i) the Indemnifying Party and Indemnified Party shall have mutually agreed in writing to the retention of the same counsel, or (ii) the named parties to any such Third Party Claim (including any impleaded parties) include the Indemnifying Party and Indemnified Party and representation of both parties by the same counsel would, in the opinion of counsel to such Indemnified Party, be impermissible under the applicable code of professional responsibility due to actual or potential differing interests between the Indemnifying Party and Indemnified Party, including situations in which such Indemnitee is entitled there are one or more legal defenses available to the Indemnified Party that are different from, or additional to, and wishes tothose available to the Indemnifying Party, make in which case the Indemnifying Party will bear such expense of the Indemnified Party; provided, that such expenses shall be limited to one outside law firm. Any election by an Indemnifying Party to assume the defense of a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten Third Party Claim must be delivered by the Indemnifying Party to the Indemnified Party within thirty (1030) Business Days after such Indemnitee has knowledge receipt of an assertion the Indemnified Party’s Claims Notice, and failure on the part of liability from such third party, deliver to the Indemnifying Party a written to deliver such notice describing, within such thirty (30) Business Day period shall be deemed an election not to assume the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery defense of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect elects to settle, compromise or defend such asserted liabilityassume the defense of a Third Party Claim, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Indemnified Party shall not be released from any obligation to indemnify the Indemnitee hereunder reasonably cooperate with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if . (c) So long as the Indemnifying Party fails has acknowledged in writing its obligation to diligently defend and prosecute indemnify the Indemnified Party hereunder with respect to such Third Party ClaimsClaim, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Indemnified Party shall choose not consent to defend a settlement of, or the entry of any claimjudgment arising from, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 15.3(b), without the consent of any Indemnified Party., but only to the extent that: (ci) With respect to such settlement or entry of judgment (A) does not involve any Losses under Section 7.4(a) finding or admission of any violation of Applicable Law or admission of any wrongdoing by the Indemnified Party; and (b), if the Indemnitee is a Buyer Indemnitee B) provides solely for the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and money; and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon (A) pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the Indemnitee for effectiveness of such settlement; (B) not encumber any of the assets of the Indemnified Party or agree to any restriction or condition that would apply to or adversely affect the Indemnified Party; and (C) obtain, as a condition of any settlement or other resolution, a complete and unconditional release of the Indemnified Party from any and all indemnifiable Losses, on demand, in cashliability respect of such Third Party Claim.

Appears in 1 contract

Samples: Annuity Reinsurance Agreement (Horace Mann Life Insurance Co Separate Account)

Claims Notice. (a) (i) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, Days after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. . (ii) The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day 30) day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.1110.10. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Purchase Agreement (NewStar Financial, Inc.)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), Whenever any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim shall arise for indemnification for a Loss pursuant to Section 7.2 hereunder, the person seeking indemnification (an the IndemniteeIndemnified Party”) shall give written notice to each Person promptly notify the party from whom such indemnification is being claimed sought in writing (an the “Indemnifying Party”) of the claim (“Claim Notice”) and, when known, the facts constituting the basis for such claim, including, if a Buyer Indemnitee is such Indemniteeknown, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge amount or an estimate of the fact, event or circumstances giving rise to amount of the claim for the Lossliability arising therefrom. The failure of the Indemnified Party to make timely delivery of such written give the Indemnifying Party prompt notice as provided herein shall not affect relieve the Indemnifying Party’s Party of any of its obligations hereunderunder this Section 9, except to the extent such that the Indemnifying Party is actually materially prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Lossfailure. The Indemnifying Party shall have a period of thirty (30) days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing (but reasonably satisfactory to the Indemnified Party) and at its own expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and the fees and expenses of such counsel shall be borne by such Indemnified Party unless the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Indemnified Party reasonably concludes that there exists a conflict of such notice and such evidence to agree to interest between the payment interests of the Loss to Indemnified Party and the IndemniteeIndemnifying Party, subject to such limitations. If or the Indemnifying Party does not agree has after a reasonable time failed to the payment employ counsel to assume or to continue to maintain such defense, in each of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to which events the Indemnified Party and, if a Seller is such may retain counsel which shall be reasonably satisfactory to the Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted pay the Loss reasonable fees and the parties shall negotiate in good faith to seek a resolution expenses of such dispute within fifteen counsel for the Indemnified Party (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) but in no event shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees be obligated to the payment pay fees and expenses of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim more than one firm for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to all Indemnified Parties). So long as the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, reasonably contesting any such matter involving claim in good faith, the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Indemnified Party shall not be released from pay or settle any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof (or does not fulfill its commitment to undertake such defense), the Indemnified Party shall choose have the right to defend contest, settle or compromise the claim but shall not thereby waive any claim, then the Indemnitee shall make available right to the indemnity therefor pursuant to this Agreement. The Indemnifying Party any booksshall not, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without except with the consent of the Indemnifying Indemnified Party. , consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the person asserting such claim to all Indemnified Parties (ci.e., GENAERA Indemnified Parties or MACROCHEM Indemnified Parties, as the case may be) With an unconditional release from all liability with respect to any Losses under Section 7.4(a) and (b)such claim. Notwithstanding the foregoing, if GENAERA shall have the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demandright, in cashits sole discretion and at its expense, to assume the investigation, defense and settlement of any claim involving the Subject IP.

Appears in 1 contract

Samples: Exclusive License Option Agreement (Genaera Corp)

Claims Notice. (a) Except with respect Any claim for indemnification that Newco wishes to Third Party Claims covered assert hereunder shall be asserted by Section 7.4(b)Purchaser on behalf of Newco. In the event that either Purchaser, any Buyer Indemnitee Newco or Seller Indemnitee who is entitled to, and wishes to, make to assert a claim for indemnification for a Loss pursuant to Section 7.2 hereunder, such party seeking indemnification (an “Indemnitee”the "Indemnified Party") shall give deliver written notice (a "Claims Notice") to each Person from whom such indemnification is being claimed the other party (an “the "Indemnifying Party") and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver claim becomes known to the Indemnifying Party a written notice describingIndemnified Party, to specifying the extent practicable, such matter in reasonable detail, including facts constituting the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documentsbasis for, and other materials in such Indemnitee’s possession related the amount (if known) of, the claim asserted. Failure to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances deliver a Claims Notice with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee a claim in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, a timely manner as specified in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which preceding sentence shall not be unreasonably withhelddeemed a waiver of the Indemnified Party's right to indemnification hereunder for Losses in connection with such claim, conditioned or delayed except where such settlement or compromise involves only but the payment amount of money and reimbursement to which the full release of any and all claims against the Indemnitee and only to the extent that such money Indemnified Party is paid entitled shall be reduced by the Indemnifying amount, if any, by which the Indemnified Party. The Indemnifying Party shall not be released from any obligation 's Losses would have been less had such Claims Notice been timely delivered; PROVIDED, HOWEVER, that, notwithstanding the foregoing, the failure to indemnify the Indemnitee hereunder deliver a Claims Notice with respect to such asserted a claim without the prior written consent within twenty (20) Business Days of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation Indemnified Party's receipt of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense written notice of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by deemed a waiver of the Indemnifying Indemnified Party. The Indemnitee shall have the 's right to participate in, but not control, at its own expense, the defense, compromise or settlement of any indemnification hereunder for Losses in connection with such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Asset Transfer and Acquisition Agreement (Unum Corp)

Claims Notice. (a) Except with respect to Third In the event that any Purchaser Indemnified Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make Indemnified Party determines to assert a claim for indemnification for hereunder arising from, based on or relating to a claim or demand made, or an Action or investigation instituted, by any Person not either a party to this Agreement or an Affiliate of a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification may be claimed under this Article X (an a IndemniteeThird Party Claim”), such party seeking indemnification (the “Indemnified Party”) shall shall, as promptly as practicable after making such determination, give written notice (a “Claims Notice”) to each Person from whom such indemnification is being claimed the other party (an the “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent ). Such Claims Notice shall specify in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except reasonable detail to the extent such practicable, based on then available information, the facts constituting the basis for, and a good faith estimate of the amount of, the claim asserted; provided, however, that the failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall not relieve the Indemnifying Party of its indemnification obligations except and only to the extent that the Indemnifying Party is actually prejudiced by failure such failure. An Indemnifying Party shall have no obligation whatsoever to give such notice. Together with such written notice, indemnify an Indemnified Party if a Claims Notice containing the Indemnitee shall provide information specified above is not received by the Indemnifying Party prior to the termination of the applicable periods described in Section 9.1; provided, however, that if, prior to such applicable date, a party hereto shall have notified the other party hereto in good faith in accordance with the requirements of this Section 10.2(a) of a claim for indemnification under this Article X (whether or not formal legal action shall have been commenced based upon such information and documents as the Indemnitee has in its possession regarding claim), such claim shall continue to be subject to indemnification in accordance with this Article X notwithstanding the passing of any such applicable date. The parties acknowledge and all pertinent information agree that the indemnification claims under clauses (i) and (iii) of Section 10.1(a) and clauses (i) and (iii) of Section 10.1(b) shall survive the Closing and continue in perpetuity or until the last date permitted by Applicable Law. (b) Subject to the provisions of Section 10.2(c), upon receipt of a Claims Notice the Indemnifying Party shall have the right to assume the defense and control of Third Party Claims at its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth own expense as provided in this Article VII Section 10.2(b). In the event the Indemnifying Party exercises such right to assume the defense and control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation to participate in (but not control) the defense of Third Party Claims with its own counsel and at its own expense; provided, however, that apply the Indemnifying Party shall bear the reasonable fees, costs and expenses of one (1) such separate counsel if (i) an actual or potential conflict of interest makes representation by the same counsel inappropriate or (ii) the Indemnifying Party shall have authorized the Indemnified Party to such Lossemploy separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall have be liable for the reasonable fees and expenses of external counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of a period Third Party Claim. Any election by an Indemnifying Party to assume the defense of a Third Party Claim must be delivered by the Indemnifying Party to the Indemnified Party within thirty (30) days after receipt by of the Indemnified Party’s Claims Notice, and failure on the part of the Indemnifying Party of to send such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party 30) day period shall be deemed an election not to have accepted assume the Loss and the parties shall negotiate in good faith to seek a resolution defense of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect elects to settle, compromise or defend such asserted liabilityassume the defense of a Third Party Claim, then it the Indemnified Party shall, within thirty and shall cause each of its Representatives, Affiliates and permitted assigns to, reasonably cooperate with the Indemnifying Party in the defense of any such Third Party Claim (30) days after such election (or soonerincluding by forwarding letters, if notices, demands and other correspondence relating to the nature subject matter of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate Third Party Claim to the fullest extent possibleIndemnifying Party and, at upon the reasonable request and reasonable expense of the Indemnifying Party, in the compromise ofmaking reasonably available books, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money records and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder personnel with respect to such asserted claim without the prior written consent subject matter of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. ). (c) If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to has assumed the defense of such matter, a Third Party Claim and cooperate is in all reasonable ways with, and make compliance with its employees and advisors and other personnel available obligations under Section 10.2(b) (or otherwise render reasonable assistance toif the thirty (30)-day period described in Section 10.2(b) has not yet elapsed), the Indemnifying Indemnified Party and its agents. An Indemnitee may shall not settle consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim without the consent of the Indemnifying Party. (c) With respect , which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any Losses under judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 7.4(a) and (b10.2(b), if without the Indemnitee is a Buyer Indemnitee consent of any Indemnified Party, but only to the payment extent that such settlement or entry of the Loss shall be paid as follows: judgment: (i) first from does not involve any finding or admission of any violation of Applicable Law or admission of any wrongdoing or any violation of the Escrow Amount (rights of any Person and does not include a statement or admission of fault, culpability or failure to the extent act by or on behalf of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and any Indemnified Party; (ii) does not subject the Indemnified Party to Section 7.3(a)(i)any injunctive relief or other equitable remedy and does not encumber any of the assets of any Indemnified Party or result in any restriction or condition that would apply to or affect any Indemnified Party or the conduct of any Indemnified Party’s business; (iii) does not affect any other claims that may be made against the Indemnified Party in a manner adverse to such Indemnified Party; and (iv) provides, if the funds as a condition of such settlement or entry of judgment, a complete and unconditional release of, or dismissal with prejudice of claims against, any Indemnified Party potentially affected by such Third Party Claim from any and all Liabilities in the Escrow Amount are inadequaterespect of such Third Party Claim; provided, further, that the Indemnifying Party shall thereupon pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the Indemnitee for all indemnifiable Losseseffectiveness of such settlement or judgment (unless otherwise provided in such settlement or judgment). (d) If the Indemnifying Party elects not to defend the Indemnified Party against a Third Party Claim, on demandwhether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, then the Indemnified Party shall have the right but not the obligation to assume its own defense, but in such case, without in any way waiving or otherwise affecting the Indemnified Party’s rights to indemnification pursuant to this Agreement. (e) Sellers shall be entitled to deliver to Purchaser, from time to time at or after the Closing, an irrevocable notice acknowledging and agreeing that specified Liabilities constitute Excluded Litigation Liabilities, Excluded Escheat Liabilities or Excluded Environmental Liabilities. For the avoidance of doubt, in cashthe event of such notice, the other applicable provisions of clauses (b) and (c) of this Section 10.2 shall continue to apply. For purposes of this Section 10.2, Purchaser shall be deemed to have delivered to Holdco, a Claims Notice in respect of all such specified Liabilities effective as of the delivery of such notice, and Sellers shall be deemed to have delivered to Purchaser the notice of the election described in Section 10.2(b) with respect to such specified Liabilities.

Appears in 1 contract

Samples: Stock Purchase Agreement (Sun Life Financial Inc)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b6.4(b), any Buyer Indemnitee, Digital Colony Indemnitee or Seller Indemnitee other indemnified party who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 6.2 (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, promptly after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually materially prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such material information and documents as the Indemnitee has in its possession regarding such claim and all material pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and incurred, including any limitations set forth in this Article VII VI that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day 30-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and then the Indemnifying Party shall be deemed not to have accepted the Loss and the parties Parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then (x) any dispute as to the value of the Loss (if the Indemnifying Party has agreed in writing that such a Loss exists) will be resolved by an independent valuation firm of national standing (the “Valuation Firm”) jointly selected by the Indemnitee and the Indemnifying Party (and, if the Parties are unable to agree upon a Valuation Firm, then the Indemnitee and the Indemnifying Party shall each select an independent valuation firm of national standing, and the two (2) valuation firms so selected shall select a third (3rd) independent valuation firm of national standing to act as the Valuation Firm) and (y) any other dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.117.11. The determination of the dispute by the Valuation Firm shall be final and binding on the Parties hereto, except in the case of manifest error or fraud. The costs of the Valuation Firm shall be allocated between the Indemnitee and the Indemnifying Party by the Valuation Firm in proportion to the extent that either of the Indemnitee or the Indemnifying Party did not prevail on the amount of the disputed Loss as submitted to the Valuation Firm. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII VI that apply to such Loss) within the thirty (30)-day 30-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VIIVI. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.26.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days promptly after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII VI that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually materially prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, any material information and other materials documents in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.46.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty ten (3010) days Business Days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, Indemnitee (which shall not be unreasonably withheld, conditioned or delayed delayed), except where such settlement or compromise involves only the payment of money and the full express, complete and unconditional release of any and all claims against the Indemnitee (and liabilities and obligations with respect thereto) and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the sole right, except as provided below in this Section 7.46.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party ClaimClaim (and may control the defense, compromise or settlement of such Third Party Claim only if the Indemnifying Party does not elect to assume such control or is not permitted to assume such control pursuant to the terms of this Section 6.4); provided, however, that (A) if there exists a conflict or is reasonably likely to exist a potential conflict of interest that would make it inappropriate, in the judgment of outside legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, (B) such Third Party Claim (i) is brought by a Governmental Authority in connection with a criminal or if regulatory Proceeding or (ii) primarily seeks (x) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnitee may or (y) a finding or admission of a violation of Law by the Indemnitee that would have available an adverse effect on the Indemnitee other than as a result of monetary damages, (C) the amount in dispute exceeds the maximum amount for which an Indemnifying Party would reasonably be expected to it one or more defenses or counterclaims that are inconsistent with one or more be liable pursuant to this Article VI in light of the defenses or counterclaims that may be available to the Indemnifying Partylimitations on indemnification herein, if applicable, or (D) if the Indemnifying Party fails to diligently and reasonably defend and prosecute such Third Party Claimsthe Indemnitee, then the Indemnitee shall be entitled to retain one separate counsel of its own counsel choosing (in each jurisdiction addition to any necessary local counsel), and the Indemnifying Party shall be responsible for the reasonable and documented fees and expenses of such separate counsel, which fees and expenses shall be reimbursed to the Indemnitee determines counsel is required, at the expense of by the Indemnifying PartyParty within thirty (30) days of a request therefor. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An The Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed) if a majority of the aggregate amount of Losses arising from such settlement are to be indemnified by the Indemnifying Party under the terms of this Article VI (or, if CCOC is the applicable Indemnifying Party, such Losses are being paid with proceeds from the Buyer Insurance Policy (other than with respect to any Losses (or portion thereof) within the retention under the Buyer Insurance Policy)). (c) With respect to any Losses under Section 7.4(a) and (b)The Indemnifying Parties shall reasonably cooperate with the Indemnitee in connection with Third Party Claims, including, if and as requested by the Indemnitee is Indemnitee, by providing any documents or other information relevant to a Buyer Indemnitee claim for indemnification hereunder, making its directors, officers and other representatives reasonably available in connection with the payment investigation, defense, settlement or compromise of any such claim, and assisting as necessary in connection with the Loss shall be paid as follows: investigation, defense, settlement or compromise thereof. (id) first from Notwithstanding anything to the Escrow Amount (contrary contained herein, to the extent of amounts the procedures in this Section 6.4 are in conflict with the procedures in the Escrow AmountBuyer Insurance Policy with regard to matters such as notice, control, settlement or defense of claims, the procedures in the Buyer Insurance Policy shall control, but this Section 6.4(d) shall not relieve any Buyer Indemnitee from its obligations under this Agreement with respect to CCOC. For the avoidance of doubt, each Party shall and shall cause its agents and advisors to reasonably cooperate with the insurer under the Buyer Insurance Policy in connection with the defense, compromise or settlement of any matter which might reasonably constitute a Loss. The insurer under the Buyer Insurance Policy shall have the right to participate in the defense and settlement of any Third Party Claim or other matter reasonably likely to be covered by the Escrow Agent, without Buyer Insurance Policy to the necessity of further action, as extent so provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cashBuyer Insurance Policy.

Appears in 1 contract

Samples: Carry Investment Agreement (Colony Capital, Inc.)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for Promptly after the Person seeking indemnification for a Loss pursuant to Section 7.2 11.02 (an the “Indemnitee”) has knowledge of any event or circumstance, including any written claim by a third party, that would reasonably be expected to give rise to indemnification under this Article XI (a “Third-Party Claim”), the Indemnitee shall give written notice deliver to each the Person from whom such which indemnification is being claimed sought (an the “Indemnifying Party”) anda written notice (a “Claim Notice”) setting forth in reasonable detail a description of the matter giving rise to indemnification hereunder, including, if known, the anticipated Losses; provided, however, that any failure or delay by the Indemnitee in delivering a Buyer Indemnitee is such Indemnitee, Claim Notice to the Escrow Agent in accordance with Indemnifying Party shall not affect the Escrow AgreementIndemnitee’s right to indemnification under this Article XI, promptlyexcept to the extent the Indemnifying Party has been materially prejudiced by such failure or delay. (b) Promptly, and but in any event no later than five twenty (520) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of a Claim Notice of a Third-Party Claim, such notice and such evidence to agree to Indemnifying Party may, at its option, assume the payment defense of the Loss to the Indemnitee, subject to Indemnitee against such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute claim (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment employment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount counsel of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except choosing that is reasonably acceptable to the extent Indemnitee); provided, that the Purchaser shall have the exclusive right to control the defense, prosecution and resolution of a Third-Party Claim that is brought by or involves a Governmental Authority (the party conducting the defense of such Indemnifying Third-Party Claim is actually prejudiced by failure referred to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, herein as the “Controlling Party” and the other materials in such Indemnitee’s possession related party is referred to such Third Party Claimherein as the “Non-Controlling Party”). The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Non-Controlling Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, shall cooperate in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without claim. Except with the prior written consent of the Indemnitee, which shall such consent not to be unreasonably withheld, conditioned or delayed except where such settlement delayed, no Indemnifying Party shall settle or compromise involves only any Third-Party Claim or permit a default judgment or consent to an entry of judgment unless such settlement, compromise or judgment (i) relates solely to money damages, (ii) provides for a full, unconditional and irrevocable release by such third party of each Indemnitee and (iii) does not contain any admission or finding of wrongdoing on behalf of the payment Indemnitee. Until the Indemnifying Party shall have so assumed the defense of money and the full release of any and all claims against the Indemnitee against such claim following the delivery of such Claim Notice, the Indemnitee may, but shall not be obligated to, undertake the defense of such claim on behalf of and only to for the extent that such money is paid by account and risk of the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder ; provided, that (x) such Indemnitee, except with respect to such asserted claim without the prior written consent of the IndemniteeIndemnifying Party, unless the Indemnifying such consent not to be unreasonably withheld, conditioned or 49 delayed, shall not settle or compromise any Third-Party shall deliver Claim or permit a default judgment or consent to an entry of judgment (subject to the exceptions set forth in clauses (i) through (iii) above, and (y) if such Indemnitee is entitled to indemnification under this Article XI (as determined by an agreement of the parties or by a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation final and non-appealable judgment of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense a court of any Third Party Claim. Subject to the following sentencecompetent jurisdiction), all costs reasonable out-of-pocket legal and fees other expenses reasonably incurred with respect to any such claim by the Indemnitee shall be borne by the Indemnifying Party. The Indemnitee Any Non-Controlling Party shall have the right to employ separate counsel in any such action or claim and to participate in, but not control, in the defense thereof either (I) at its own expenseexpense or (II) at the Indemnifying Party’s cost and expense if (1) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, (2) on the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment reasonable advice of legal counsel to the Indemnitee, for the same counsel to represent both a conflict or potential conflict of interest exists between the Indemnitee and the Indemnifying Party, Party that would make such separate representation advisable or if the Indemnitee may have available to it (3) one or more defenses or counterclaims are available to the Indemnitee that are inconsistent with one or more of the defenses or counterclaims that may be not available to the Indemnifying Party; provided, or if that such expenses shall be paid by the Indemnifying Party fails to diligently defend if and prosecute such Third Party Claims, then only if (and at the time) that the Indemnitee shall be is entitled to retain its own counsel indemnification in each jurisdiction for which the Indemnitee determines counsel is required, at the expense respect of such Third-Party Claim (as determined by an agreement of the Indemnifying Partyparties or by a final and non-appealable judgment of a court of competent jurisdiction). If the Indemnifying Party shall choose to defend After any claimsuch claim has been filed or initiated, then the Indemnitee each party shall make available to the Indemnifying Party any booksother parties and their attorneys and accountants all pertinent information under its control relating to such claim which is made available under the terms of a confidentiality agreement or similar protective measures, records or and the parties agree to render to each other documents within its direct or indirect control that relate such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense of any such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Partyclaim. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Stock Purchase Agreement

Claims Notice. (a) Except with respect In the event that any Reinsurer Indemnified Party or Ceding Company Indemnified Party elects to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make assert a claim for indemnification for hereunder arising from a claim or demand made, or an Action or investigation instituted, by any Person not a party to this Agreement or an Affiliate of a party to this Agreement that may result in a Loss pursuant to Section 7.2 (an “Indemnitee”) shall give written notice to each Person from whom such for which indemnification is being may be claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in under this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty XVII (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”), such party seeking indemnification (the “Indemnified Party”) shall, as promptly as practicable give written notice (a “Claims Notice”) to the other party (the “Indemnifying Party”). Such Claims Notice shall specify in reasonable detail the facts constituting the basis for, and the amount of, the claim asserted. The failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall relieve the Indemnifying Party of its indemnification obligations to the extent such failure or other actions taken by the Indemnified Party shall actually prejudice an Indemnifying Party; provided, however, that an Indemnifying Party shall have no obligation whatsoever to indemnify an Indemnified Party if a Claims Notice containing the information specified above is not received by the Indemnifying Party prior to the termination of the applicable periods described in Section 16.05. (b) Subject to the provisions of Section 17.02(c), upon receipt of a Claims Notice, the Indemnifying Party shall have the right to assume the defense and control of Third Party Claims. In the event the Indemnifying Party exercises such right to assume the defense and control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation reasonably to participate in (but not control) the defense of Third Party Claims with respect its own counsel and at its own expense unless (i) the Indemnifying Party and Indemnified Party shall have mutually agreed in writing to the retention of the same counsel, or (ii) the named parties to any such Third Party Claim (including any impleaded parties) include the Indemnifying Party and Indemnified Party and representation of both parties by the same counsel would, in the opinion of counsel to such Indemnified Party, be impermissible under the applicable code of professional responsibility due to actual or potential differing interests between the Indemnifying Party and Indemnified Party, including situations in which such Indemnitee is entitled there are one or more legal defenses available to the Indemnified Party that are different from, or additional to, and wishes tothose available to the Indemnifying Party, make in which case the Indemnifying Party will bear such expense of the Indemnified Party. Any election by an Indemnifying Party to assume the defense of a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten Third Party Claim must be delivered by the Indemnifying Party to the Indemnified Party within thirty (1030) Business Days after such Indemnitee has knowledge receipt of an assertion the Indemnified Party’s Claims Notice, and failure on the part of liability from such third party, deliver to the Indemnifying Party a written to deliver such notice describing, within such thirty (30) Business Day period shall be deemed an election not to assume the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery defense of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect elects to settle, compromise or defend such asserted liabilityassume the defense of a Third Party Claim, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Indemnified Party shall not be released from any obligation to indemnify the Indemnitee hereunder reasonably cooperate with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely . (c) The Indemnified Party shall not consent to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Partysettlement of, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more entry of the defenses or counterclaims that may be available to the Indemnifying Partyany judgment arising from, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 17.02(b), without the consent of any Indemnified Party., but only to the extent that: (ci) With respect to such settlement or entry of judgment (A) does not involve any Losses under Section 7.4(a) finding or admission of any violation of applicable Law or admission of any wrongdoing by the Indemnified Party; and (b), if the Indemnitee is a Buyer Indemnitee B) provides solely for the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and money; and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon (A) pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the Indemnitee effectiveness of such settlement; (B) not encumber any of the assets of the Indemnified Party or agree to any restriction or condition that would apply to or adversely affect the Indemnified Party; and (C) obtain, as a condition of any settlement or other resolution, a complete and unconditional release of the Indemnified Party from any and all liability respect of such Third Party Claim. (d) In the event that any Indemnified Party elects to bring a claim that does not involve a Third Party Claim for all indemnifiable Lossesindemnity against any Indemnifying Party, on demandthe Indemnified Party shall deliver written notice of such claim to the Indemnifying Party as promptly as practicable. Such notice shall specify in reasonable detail the facts constituting the basis for, and the amount of, the claim asserted. The failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall relieve the Indemnifying Party of its indemnification obligation to the extent such failure or other action taken by the Indemnified Party shall actually prejudice the Indemnifying Party; provided, however, that an Indemnifying Party shall have no obligation whatsoever to indemnify an Indemnified Party if the written notice described in cashthis Section 17.02(d) is not received by the Indemnifying Party prior to the termination of the applicable periods described in Section 16.05.

Appears in 1 contract

Samples: Funds Withheld Coinsurance Agreement (National Western Life Group, Inc.)

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Claims Notice. (a) All claims for indemnification by either an Acquiror Indemnitee or API Entity Indemnitee under this Article X shall be asserted and resolved in accordance with this Section 10.4. (b) Except with respect to Third Party Claims covered by Section 7.4(b10.4(c), any Buyer Acquiror Indemnitee or Seller API Entity Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 10.2 (an “Indemnitee”) shall give written notice to to, in the case of an Acquiror Indemnitee, the API Representative, or in the case of an API Entity Indemnitee, the Acquiror, on behalf of each Person from whom such indemnification is being claimed under this Article X (an “Indemnifying Party”) andas promptly as practicable, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent but in accordance with the Escrow Agreement, promptly, and in any no event no later more than five fifteen (515) Business Days, calendar days after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss, describing such claim in reasonable detail and the amount or estimated amount (if ascertainable) of such Loss (the “Claims Notice”), which Claims Notice shall also (i) state that the Indemnitee has paid or properly accrued Losses or anticipates in good faith that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) if paid or accrued, state the date such item was paid or accrued. The failure to make timely delivery of such written notice Claims Notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually and materially prejudiced by failure to give such notice. The Indemnitee shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnification by the Indemnitee and in otherwise resolving such matters. Together with such written noticeClaims Notice, the Indemnitee shall provide the Indemnifying Party with reasonable access to and copies of such information information, records and documents as the Indemnitee has in its possession regarding such claim and all material pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and incurred, including any limitations set forth in this Article VII X that apply to such LossLoss and provide reasonable legal and business assistance with respect to such claim. The Indemnifying Party shall have a period of thirty (30) days after from the date of receipt by the Indemnifying Party of such notice the applicable Claims Notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree in writing to the payment of the Loss within such thirty (30)-day 30-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and then the Indemnifying Party shall be deemed not to have accepted the Loss and the parties Parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any such dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.1111.11. If the Indemnifying Party agrees in writing to the payment of the Loss set forth in the Claim Notice (subject to any limitations set forth in this Article VII X that apply to such Loss) within the thirty (30)-day 30-day period described above, then it shall, within ten (10) Business Days after providing such written agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII.X. (bc) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.210.2, then such Indemnitee shall promptly, and in any event no later than ten within fifteen (1015) Business Days calendar days after such Indemnitee has knowledge of an assertion of liability from such third partyparty with respect to such Third Party Claim, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such LossClaims Notice. The failure to make timely delivery of such written notice Claims Notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually and materially prejudiced by failure to give such timely notice. In any event, delivery of such delivery Claims Notice shall be accompanied by any and all material information, documents, records and other materials documents in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee Indemnifying Party shall not make any admissions be entitled to participate in such claim, action or acceptances suit in connection with respect to such Third Party Claim. The Indemnifying Party , and may, subject to the other provisions of this Section 7.410.4, settle, compromise or defendassume the control of defense or prosecution of, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counselcounsel of its choice, any such matter Third Party Claim; provided, that no Indemnifying Party shall be entitled to assume and control the defense and settlement of any Third Party Claim: (i) seeking any criminal penalties or indictment against Indemnitee; (ii) seeking material injunctive or other material equitable relief against a Indemnitee; (iii) involving any material client or business relationship of Indemnitee; (iv) reasonably likely to involve Losses in excess of any permitted recovery by the asserted liability Indemnitee under this Article X; or (v) where the Indemnitee has been advised by counsel in writing that a conflict exists under applicable standards of professional conduct between the Indemnitee and such Indemnifying Party in connection with the defense of such Third Party Claim such that such Indemnifying Party cannot adequately represent the interests of the Indemnitee. In any of the cases set forth in the preceding clauses (i) through (v), the Indemnitee in respect shall be entitled to assume, retain and control the defense and settlement of the Third Party Claim with counsel of its choosing. The Indemnitee shall reasonably consult with the Indemnifying Parties as requested with respect to the handling of such Third Party Claim. The Indemnifying Parties shall be entitled at any time, at their own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. (d) If the Indemnifying Party shall elect to settle, compromise or defend assume the control of defense or prosecution of such asserted liabilityThird Party Claim, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the settlement or compromise of, or defense againstagainst or prosecution of, such asserted liabilityliability and the Indemnitee shall not consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnifying Party; provided, that no settlement or compromise of any Third Party Claim by the Indemnifying Party shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed delayed, except that such consent shall not be required where such settlement or compromise involves only the payment of money and the full and unconditional release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The If the Indemnifying Party shall have elects to assume the right, except as provided below in this Section 7.4, to conduct and control of the defense or prosecution of any such Third Party Claim. Subject to , the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest such that would make it inappropriatecounsel to the Indemnifying Party could not, in the reasonable good faith judgment of legal counsel to the Indemnitee, for the same counsel to adequately represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee reasonably determines counsel is required, at and the expense fees and expenses of one (1) such counsel, plus one (1) local counsel, shall be paid by the Indemnifying Party. If the Indemnifying Party shall choose to defend assume the control of the defense or prosecution of any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct control or indirect control possession that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Whether or not the Indemnifying Party has assumed the defense or prosecution of such Third Party Claim, the Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). The Indemnitee may, subject to the other provisions of this Section 10.4, upon written notice to the Indemnifying Party. , control the defense, compromise or settlement of such Third Party Claim if the Indemnifying Party does not elect to assume such control or is not permitted to assume such control pursuant to the terms of this Section 10.4; provided, however, that the Indemnifying Party (cx) With respect shall in all cases have the right to any Losses under Section 7.4(a) participate in the defense or prosecution of the Third Party Claim at its sole cost and expense and (b), if y) may at any time thereafter (unless not permitted to assume such control pursuant to the Indemnitee is a Buyer Indemnitee terms of this Section 10.4) elect to assume the payment control of the Loss shall be paid as follows: (i) first from defense or prosecution of the Escrow Amount (to the extent of amounts Third Party Claim, in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, which event the Indemnifying Party shall thereupon pay bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnifying Party of defense of the Third Party Claim. (e) If an Acquiror Indemnitee for all indemnifiable Lossesis not the Indemnitee, on demandthe Acquiror shall, and shall cause the Company Group Entities to, reasonably cooperate with the Indemnitees and Indemnifying Parties, in casheach case, to the extent pertaining to or in connection with the matters described in this Section 10.4, including, if and as requested by such Indemnitees and/or Indemnifying Parties, by providing any documents or other information relevant to a claim for indemnification hereunder, making its directors, officers, employees and other representatives reasonably available in connection with the investigation, defense, prosecution settlement or compromise of any such claim, and assisting as necessary in connection with the investigation, defense, prosecution settlement or compromise of any Third Party Claim; provided, that such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Company Group Entities.

Appears in 1 contract

Samples: Transaction Agreement (TPG Inc.)

Claims Notice. (a) Except with respect to Third In the event that any Purchaser Indemnified Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make Indemnified Party forms an intention to assert a claim for indemnification for hereunder arising from a claim or demand made, or an Action or investigation instituted, by any Person not either a party to this Agreement or an Affiliate of a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification may be claimed under this ARTICLE X (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”), such party seeking indemnification (the “Indemnified Party”) with respect shall, as promptly as practicable after forming such intention, give written notice (a “Claims Notice”) to which such Indemnitee is entitled tothe other party (the “Indemnifying Party”). Such Claims Notice shall specify in detail the facts constituting the basis for, and wishes tothe amount of, make the claim asserted. The failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall relieve the Indemnifying Party of its indemnification obligations except and only to the extent such failure or other actions taken by the Indemnified Party shall actually prejudice an Indemnifying Party; provided, however, that an Indemnifying Party shall have no obligation whatsoever to indemnify an Indemnified Party if a claim for indemnification for Claims Notice containing the information specified above is not received by the Indemnifying Party prior to the termination of the applicable periods described in Section 9.1. (b) Subject to the provisions of this Section 10.2(b), upon receipt of a Loss Claims Notice the Indemnifying Party shall have the right to assume the defense and control of Third Party Claims. In the event the Indemnifying Party exercises such right to assume the defense and control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation reasonably to participate in (but not control) the defense of Third Party Claims with its own counsel and at its own expense, provided, however, that if the representation of the Indemnified Party and the Indemnifying Party by the same counsel creates a conflict of interest under Section 7.2applicable standards of professional conduct of attorneys or materially prejudices the defense or prosecution of the defenses available to the Indemnified Party, then such Indemnitee the Indemnifying Party shall promptlybe liable for the reasonable fees and expenses of one separate counsel employed by the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall cooperate fully and in good faith with the Indemnified Party in the defense of any event no later than ten such Third Party Claim that (10x) is asserted directly by or on behalf of a Person that is a Producer or customer of any Transferred Company, or (y) seeks an injunction or other equitable relief against the Indemnified Party. Any election by an Indemnifying Party to assume the defense of a Third Party Claim must be delivered by the Indemnifying Party to the Indemnified Party within fifteen (15) Business Days after such Indemnitee has knowledge receipt of an assertion the Indemnified Party’s Claims Notice, and failure on the part of liability from such third party, deliver to the Indemnifying Party a written to send such notice describing, within such fifteen (15) Business Day period shall be deemed an election not to assume the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery defense of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect elects to settle, compromise or defend such asserted liabilityassume the defense of a Third Party Claim, then it the Indemnified Party shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee and shall cause each of its intention to do so directors, officers, employees, agents, representatives, Affiliates and the Indemnitee shall permitted assigns to, cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder fully with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist which cooperation shall include designating a conflict of interest that would make it inappropriate, in the judgment of legal liaison counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if whom the Indemnifying Party fails may direct notices and other communications, using reasonable efforts to diligently defend make witnesses available, and prosecute providing records and documents to the extent such witnesses, records and documents are relevant to the Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Claim. (c) The Indemnified Party shall choose not consent to defend a settlement of, or the entry of any claimjudgment arising from, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party.. The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 10.2(a), without the consent of any Indemnified Party, but only to the extent that such settlement or entry of judgment: (ci) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee provides solely for the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and money, (ii) subject does not impose an injunction or other equitable relief upon the Indemnified Party, (iii) provides a complete and unconditional release of, or dismissal with prejudice of claims against, any Indemnified Party potentially affected by such Third Party Claim from all matters that were asserted in connection with such claims, and (iv) does not include a statement or admission of fault, culpability or failure to Section 7.3(a)(i), if act by or on behalf of the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cashIndemnified Party.

Appears in 1 contract

Samples: Stock Purchase Agreement (American Financial Group Inc)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for Promptly after the Person seeking indemnification for a Loss pursuant to Section 7.2 11.02 (an the “Indemnitee”) has knowledge of any event or circumstance, including any written claim by a third party, that would reasonably be expected to give rise to indemnification under this Article XI (a “Third-Party Claim”), the Indemnitee shall give written notice deliver to each the Person from whom such which indemnification is being claimed sought (an the “Indemnifying Party”) anda written notice (a “Claim Notice”) setting forth in reasonable detail a description of the matter giving rise to indemnification hereunder, including, if known, the anticipated Losses; provided, however, that any failure or delay by the Indemnitee in delivering a Buyer Indemnitee is such Indemnitee, Claim Notice to the Escrow Agent in accordance with Indemnifying Party shall not affect the Escrow AgreementIndemnitee’s right to indemnification under this Article XI, promptlyexcept to the extent the Indemnifying Party has been materially prejudiced by such failure or delay. (b) Promptly, and but in any event no later than five twenty (520) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of a Claim Notice of a Third-Party Claim, such notice and such evidence to agree to Indemnifying Party may, at its option, assume the payment defense of the Loss to the Indemnitee, subject to Indemnitee against such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute claim (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment employment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount counsel of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except choosing that is reasonably acceptable to the extent Indemnitee); provided, that the Purchaser shall have the exclusive right to control the defense, prosecution and resolution of a Third-Party Claim that is brought by or involves a Governmental Authority (the party conducting the defense of such Indemnifying Third-Party Claim is actually prejudiced by failure referred to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, herein as the “Controlling Party” and the other materials in such Indemnitee’s possession related party is referred to such Third Party Claimherein as the “Non-Controlling Party”). The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Non-Controlling Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, shall cooperate in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without claim. Except with the prior written consent of the Indemnitee, which shall such consent not to be unreasonably withheld, conditioned or delayed except where such settlement delayed, no Indemnifying Party shall settle or compromise involves only any Third-Party Claim or permit a default judgment or consent to an entry of judgment unless such settlement, compromise or judgment (i) relates solely to money damages, (ii) provides for a full, unconditional and irrevocable release by such third party of each Indemnitee and (iii) does not contain any admission or finding of wrongdoing on behalf of the payment Indemnitee. Until the Indemnifying Party shall have so assumed the defense of money and the full release of any and all claims against the Indemnitee against such claim following the delivery of such Claim Notice, the Indemnitee may, but shall not be obligated to, undertake the defense of such claim on behalf of and only to for the extent that such money is paid by account and risk of the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder ; provided, that (x) such Indemnitee, except with respect to such asserted claim without the prior written consent of the IndemniteeIndemnifying Party, unless the Indemnifying such consent not to be unreasonably withheld, conditioned or delayed, shall not settle or compromise any Third-Party shall deliver Claim or permit a default judgment or consent to an entry of judgment (subject to the exceptions set forth in clauses (i) through (iii) above, and (y) if such Indemnitee is entitled to indemnification under this Article XI (as determined by an agreement of the parties or by a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation final and non-appealable judgment of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense a court of any Third Party Claim. Subject to the following sentencecompetent jurisdiction), all costs reasonable out-of-pocket legal and fees other expenses reasonably incurred with respect to any such claim by the Indemnitee shall be borne by the Indemnifying Party. The Indemnitee Any Non-Controlling Party shall have the right to employ separate counsel in any such action or claim and to participate in, but not control, in the defense thereof either (I) at its own expenseexpense or (II) at the Indemnifying Party’s cost and expense if (1) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, (2) on the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment reasonable advice of legal counsel to the Indemnitee, for the same counsel to represent both a conflict or potential conflict of interest exists between the Indemnitee and the Indemnifying Party, Party that would make such separate representation advisable or if the Indemnitee may have available to it (3) one or more defenses or counterclaims are available to the Indemnitee that are inconsistent with one or more of the defenses or counterclaims that may be not available to the Indemnifying Party; provided, or if that such expenses shall be paid by the Indemnifying Party fails to diligently defend if and prosecute such Third Party Claims, then only if (and at the time) that the Indemnitee shall be is entitled to retain its own counsel indemnification in each jurisdiction for which the Indemnitee determines counsel is required, at the expense respect of such Third-Party Claim (as determined by an agreement of the Indemnifying Partyparties or by a final and non-appealable judgment of a court of competent jurisdiction). If the Indemnifying Party shall choose to defend After any claimsuch claim has been filed or initiated, then the Indemnitee each party shall make available to the Indemnifying Party any booksother parties and their attorneys and accountants all pertinent information under its control relating to such claim which is made available under the terms of a confidentiality agreement or similar protective measures, records or and the parties agree to render to each other documents within its direct or indirect control that relate such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense of any such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Partyclaim. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)

Claims Notice. Each party hereto (aan "Indemnified Party") Except with respect to Third Party Claims covered by Section 7.4(b)shall, promptly upon becoming aware of any Buyer Indemnitee event or Seller Indemnitee who is entitled tocircumstance (an "Indemnifiable Event") which, and wishes toin his, make a claim for indemnification for her or its reasonable judgment, may result in a Loss pursuant to Section 7.2 for which the Indemnified Party could assert a right of indemnification against any other party (an “Indemnitee”or parties) shall give written notice to each Person from whom such indemnification is being claimed hereto (an “the "Indemnifying Party") andunder this Article 6, if a Buyer Indemnitee is such Indemnitee, give notice thereof (the "Claims Notice") to the Escrow Agent in accordance with Indemnifying Party (but the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge obligations of the fact, event or circumstances giving rise to Indemnifying Party under this Article 9 shall not be impaired by the claim for the Loss. The Indemnified Party's failure to make timely delivery of give such written notice shall not affect the Indemnifying Party’s obligations hereundernotice, except to the extent such Indemnifying Party is that said failure actually prejudiced by failure to give such notice. Together with such written notice, prejudices the Indemnitee shall provide rights of the Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in reasonable detail, shall indicate whether the Indemnifiable Event involves a "Third Party with such information Claim" (defined below), and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall indicate the amount (estimated, if necessary) of the Loss that it asserts it has sustained been or incurred and any limitations set forth in this Article VII that apply to may be suffered by the Indemnified Party. In such Loss. The event, the Indemnifying Party shall have a period of thirty shall, within fifteen (3015) business days after receipt by of the Indemnifying Claims Notice, give notice to the Indemnified Party of such notice and such evidence whether he or it intends to agree to dispute the payment of claim described in the Loss to Claims Notice (the Indemnitee, subject to such limitations"Response Notice"). If the Indemnifying Party does not agree to timely disputes the payment of the Loss within such thirty (30)-day periodClaims Notice as provided above, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andshall, if for a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed period of not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within more than fifteen (15) business days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment after receipt of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election Response Notice (or soonerless, if the nature of the asserted liability Indemnifiable Event so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense seek out a negotiated settlement of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder dispute with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party and shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, refrain during that period from commencing any judicial proceeding or other obligation of or limitation on the Indemniteeaction to enforce this Article 6. The Indemnifying Party shall have the rightIf, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expensedespite their good faith negotiations, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely parties are unable to exist a conflict of interest that would make it inappropriate, in resolve the judgment of legal counsel to dispute within the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, aforesaid period (or if the Indemnifying Party fails to diligently defend timely give the Response Notice), the Indemnified Party shall be free to exercise all rights and prosecute such remedies available to him or it hereunder, at law in equity or otherwise to enforce his or its rights under this Article 6. As used herein, "Third Party ClaimsClaim" means any demand, then claim or circumstance which, with the Indemnitee shall be entitled lapse of time or otherwise, would give rise to retain its own counsel in each jurisdiction for which a claim or the Indemnitee determines counsel is required, at the expense commencement (or threatened commencement) of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in proceeding or investigation against the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Indemnified Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cashby any other person.

Appears in 1 contract

Samples: Agreement and Plan of Exchange (Renewable Assets Inc)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee In the event that either Purchaser or Seller Indemnitee who is entitled to, and wishes to, make to assert a claim for indemnification for hereunder (including, but not limited to, claims arising from a claim or demand made, or an action, proceeding or investigation instituted, by any Person not a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification is claimed under this Article 9) (an a IndemniteeThird Party Claim”), such party seeking indemnification (the “Indemnified Party”) shall give written notice (a “Claims Notice”) to each Person from whom such indemnification is being claimed the other party (an the “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, ). Such Claims Notice shall be delivered to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty promptly as practicable (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and but in any event event, no later than ten (10) Business Days calendar days after receiving notice or becoming aware of such Indemnitee has knowledge of an assertion of liability from such third partyclaim), deliver specifying in detail the facts constituting the basis for, and the amount of, the claim asserted. The failure by any Indemnified Party so to notify the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and shall relieve any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s Party from its indemnification obligations hereunder, except to the extent such failure or other actions taken by the Indemnified Party in response to such claim shall materially and actually prejudice an Indemnifying Party. Such Claims Notices must be received prior to the expiration of the Survival Period. (b) Subject to the provisions of Section 9.2(c), upon receipt of a Claims Notice the Indemnifying Party is actually prejudiced by failure shall at any time have the right to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, assume the defense and other materials in such Indemnitee’s possession related to such control of the Third Party Claim. The Indemnitee In the event the Indemnifying Party exercises such rights, the Indemnified Party shall have the right, but not make any admissions the obligation, to participate reasonably in (but not control) the defense of the Third Party Claim with its own counsel and at its own expense. If the Indemnifying Party elects to negotiate, settle or acceptances with respect to such assume the defense of a Third Party Claim. The , the Indemnifying Party mayshall within ten (10) days notify the Indemnified Party of its intent to do so and select counsel and shall take all steps reasonably deemed necessary by the Indemnifying Party in the defense, subject to the other provisions negotiation or settlement of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect elects not to defend against or negotiate, settle, compromise or otherwise deal with any Third Party Claim that relates to any Losses indemnified against hereunder, the Indemnified Party may defend against, negotiate, settle, or otherwise deal with such asserted liability, then it Third Party Claim. The Indemnified Party shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee and shall cause each of its intention to do so directors, officers, employees, agents, representatives, Affiliates and the Indemnitee shall permitted assigns to, cooperate to the fullest extent possible, at the request and reasonable expense of fully with the Indemnifying Party, Party in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim defended by the Indemnifying Party, which cooperation shall include, without limitation, designating a person to whom the Indemnifying Party may direct notices and other communications, using commercially reasonable efforts to make witnesses available, and providing records and documents to the extent such witnesses, records and documents are relevant to the Third Party Claim. Stock Purchase Agreement Family Life Insurance Company (c) The Indemnifying Party shall be made authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 9.2(b), without the consent of any Indemnified Party, but only to the extent that such settlement or entry of judgment (i) provides solely for the payment of money by the Indemnifying Party, or (ii) provides a complete release of, or dismissal with prejudice of claims against, the Indemnified Party from all matters that were asserted in connection with such claims. Except as provided in the foregoing sentence, settlement or consent to entry of judgment shall require the prior approval of the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed. If requested by the Indemnifying Party, the Indemnified Party will cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim or cross-complaint against any Person (other than the Indemnified Party or its directors, officers, employees, agents, representatives, Affiliates, successors and permitted assigns). Unless and until the Indemnifying Party elects to defend the Third Party Claim, the Indemnified Party shall have the right, at its option and at the Indemnifying Party’s expense, to do so in such manner as it reasonably deems appropriate; provided, however, that the Indemnified Party shall not settle or compromise any Third Party Claim for which it seeks indemnification hereunder without the prior written consent of the Indemnitee, Indemnifying Party (which shall not be unreasonably withheld). Notwithstanding the above, conditioned or delayed except where such if a settlement or compromise involves only offer solely for money damages is made by the payment of money applicable third party claimant, and the full release Indemnifying Party notifies the Indemnified Party in writing of the Indemnifying Party’s willingness to accept the settlement offer and, subject to the applicable limitations of Sections 9.4 and 9.5, pay the amount called for by such offer, and the Indemnified Party declines to accept such offer, the Indemnified Party may continue to contest such Third Party Claim, free of any and all claims against the Indemnitee and only to the extent that such money is paid participation by the Indemnifying Party. The Indemnifying Party shall not be released from , and the amount of any obligation to indemnify the Indemnitee hereunder ultimate liability with respect to such asserted claim without the prior written consent of the Indemnitee, unless Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall deliver be limited to the Indemnitee a duly executed agreement settling lesser of (A) the amount of the settlement offer that the Indemnified Party declined to accept or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation (B) the aggregate Losses of or limitation on the Indemnitee. The Indemnifying Indemnified Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Stock Purchase Agreement (Financial Industries Corp)

Claims Notice. Each party hereto (aan "Indemnified Party") Except with respect to Third Party Claims covered by Section 7.4(b)shall, promptly upon becoming aware of any Buyer Indemnitee event or Seller Indemnitee who is entitled tocircumstance (an "Indemnifiable Event") which, and wishes toin his, make a claim for indemnification for her or its reasonable judgment, may result in a Loss pursuant to Section 7.2 for which the Indemnified Party could assert a right of indemnification against any other party (an “Indemnitee”or parties) shall give written notice to each Person from whom such indemnification is being claimed hereto (an “the "Indemnifying Party") andunder this Article 9, if a Buyer Indemnitee is such Indemnitee, give notice thereof (the "Claims Notice") to the Escrow Agent in accordance with Indemnifying Party (but the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge obligations of the fact, event or circumstances giving rise to Indemnifying Party under this Article 9 shall not be impaired by the claim for the Loss. The Indemnified Party's failure to make timely delivery of give such written notice shall not affect the Indemnifying Party’s obligations hereundernotice, except to the extent such Indemnifying Party is that said failure actually prejudiced by failure to give such notice. Together with such written notice, prejudices the Indemnitee shall provide rights of the Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in reasonable detail, shall indicate whether the Indemnifiable Event involves a "Third Party with such information Claim" (defined below), and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall indicate the amount (estimated, if necessary) of the Loss that it asserts it has sustained been or incurred and any limitations set forth in this Article VII that apply to may be suffered by the Indemnified Party. In such Loss. The event, the Indemnifying Party shall have a period of thirty shall, within fifteen (3015) business days after receipt by of the Indemnifying Claims Notice, give notice to the Indemnified Party of such notice and such evidence whether he or it intends to agree to dispute the payment of claim described in the Loss to Claims Notice (the Indemnitee, subject to such limitations"Response Notice"). If the Indemnifying Party does not agree to timely disputes the payment of the Loss within such thirty (30)-day periodClaims Notice as provided above, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andshall, if for a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed period of not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within more than fifteen (15) business days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment after receipt of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election Response Notice (or soonerless, if the nature of the asserted liability Indemnifiable Event so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense seek out a negotiated settlement of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder dispute with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.shall

Appears in 1 contract

Samples: Share Exchange Agreement (Ikon Ventures Inc)

Claims Notice. (a) Except with respect to Third Third-Party Claims covered by Section 7.4(b8.4(b), any Buyer Indemnitee or Xxxx Seller Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 this Article VIII (an “IndemniteeIndemnified Party”) shall give written notice to each Person person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five within thirty (530) Business Days, days after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The , describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand; provided, that the failure to make timely delivery of provide such written notice shall not affect release the Indemnifying Party’s Party from any of its obligations hereunder, under this Article VIII except to the extent such that the Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written noticefailure, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has it being agreed that notices for claims in its possession regarding such claim and all pertinent information in its possession regarding the amount respect of the Loss that it asserts it has sustained a breach of a representation, warranty, covenant or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree agreement must be delivered prior to the payment expiration of the Loss to the Indemniteeany applicable survival period specified in Section 8.1 for such representation, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day periodwarranty, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such covenant or agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee Indemnified Party (each, a “Third Third-Party Claim”) with respect to which such Indemnitee Indemnified Party is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2this Article VIII, then such Indemnitee Indemnified Party shall promptly, and in any event no later than ten thirty (1030) Business Days after such Indemnitee Indemnified Party has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, describing in reasonable detail the facts and circumstances with respect to the extent practicablesubject matter of such claim or demand; provided, such matter in reasonable detail, including that the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of provide such written notice shall not affect release the Indemnifying Party’s Party from any of its obligations hereunder, under this Article VIII except to the extent such that the Indemnifying Party is actually prejudiced by failure such failure, it being agreed that notices for claims in respect of a breach of a representation, warranty, covenant or agreement must be delivered prior to give the expiration of any applicable survival period specified in Section 8.1 for such timely noticerepresentation, warranty, covenant or agreement. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Upon receipt of a notice of a Third-Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The , the Indemnifying Party maywill be entitled, subject by notice to the other provisions Indemnified Party delivered within fifteen (15) Business Days of this Section 7.4the receipt of notice of such Third-Party Claim (or sooner if notice of the Third-Party Claim so requires), settle, compromise or defend, to assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party’s ); provided, that the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third-Party Claim with its own expense counsel and by such Indemnifying at the Indemnified Party’s own expense; provided, further, that the Indemnifying Party shall not have the right to assume control of such defense and shall pay the fees and expenses of one (1) outside legal counsel retained by the Indemnified Party if the claim (i) primarily seeks non- monetary relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages, as reasonably determined by the Indemnifying Party), or (ii) is one in which the Indemnifying Party is also a party and there are legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnified Party. If the Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 8.4(b), the Indemnified Party shall be entitled to assume and control such defense with counsel of its own choosing, with the Indemnified Party responsible for the reasonable costs and expenses of one (1) outside legal counsel, but the Indemnifying Party may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. If the Indemnifying Party assumes the defense and control of a Third-Party Claim, the Indemnifying Party shall select counsel, contractors and consultants of recognized standing and competence. The Xxxx Xxxxxxx and Buyers, as the case may be, shall, and shall cause each of their affiliates and representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third-Party Claim, including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such matter involving the asserted liability of the Indemnitee in respect of the Third Third-Party Claim. If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall elect be authorized to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee of its intention consent to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise a settlement of, or defense againstthe entry of any judgment arising from, such asserted liabilityany Third-Party Claim, in its sole discretion and without the consent of any Indemnified Party; provided, that no (x) such settlement or judgment does not (A) impose any equitable or other non-monetary remedies or obligations on the Indemnified Party but involves solely the payment of money damages for which the Indemnified Party will be fully indemnified hereunder, subject to the limitations set forth in this Article VIII and (B) involve a finding or admission of wrongdoing or any violation of law or any violation of the rights of any person by the party, and (y) the Indemnifying Party shall pay or cause to be paid all amounts in such settlement or judgment, subject to the limitations set forth in this Article VIII. No Indemnified Party will consent to the entry of any judgment or enter into any settlement or compromise of any Third with respect to a Third-Party Claim shall be made without the prior written consent of the IndemniteeIndemnifying Party, which shall with such consent not to be unreasonably withheld; provided, conditioned or delayed except where such settlement or compromise involves only that, notwithstanding the payment of money and foregoing, the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Indemnified Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise pay or settlement of settle any such Third Party Claim; provided, however, that claim if there exists or is reasonably likely to exist it irrevocably waives in a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available writing delivered to the Indemnifying Party any books, records right to indemnity or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Partyrecovery therefor under this Agreement. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.

Appears in 1 contract

Samples: Purchase Agreement

Claims Notice. Each party hereto (aan "Indemnified Party") Except with respect to Third Party Claims covered by Section 7.4(bshall, promptly upon becoming aware of any event or circumstance (an "Indemnifiable Event"), any Buyer Indemnitee which, in his or Seller Indemnitee who is entitled toits reasonable judgment, and wishes to, make a claim for indemnification for may result in a Loss pursuant to Section 7.2 for which the Indemnified Party could assert a right of indemnification against any other party (an “Indemnitee”or parties) shall give written notice to each Person from whom such indemnification is being claimed hereto (an “the "Indemnifying Party") andunder this Article 8, if a Buyer Indemnitee is such Indemnitee, give notice thereof (the "Claims Notice") to the Escrow Agent in accordance with Indemnifying Party (but the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge obligations of the fact, event or circumstances giving rise to Indemnifying Party under this Article 8 shall not be impaired by the claim for the Loss. The Indemnified Party's failure to make timely delivery of give such written notice shall not affect the Indemnifying Party’s obligations hereundernotice, except to the extent such Indemnifying Party is that said failure actually prejudiced by failure to give such notice. Together with such written notice, prejudices the Indemnitee shall provide rights of the Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in reasonable detail, shall indicate whether the Indemnifiable Event involves a "Third Party with such information Claim" (defined below), and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall indicate the amount (estimated, if necessary) of the Loss that it asserts it has sustained been or incurred and any limitations set forth in this Article VII that apply to may be suffered by the Indemnified Party. In such Loss. The event, the Indemnifying Party shall have a period of thirty shall, within fifteen (3015) business days after receipt by of the Indemnifying Claims Notice, give notice to the Indemnified Party of such notice and such evidence whether he or it intends to agree to dispute the payment of claim described in the Loss to Claims Notice (the Indemnitee, subject to such limitations"Response Notice"). If the Indemnifying Party does not agree to timely disputes the payment of the Loss within such thirty (30)-day periodClaims Notice as provided above, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andshall, if for a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed period of not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within more than fifteen (15) business days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment after receipt of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election Response Notice (or soonerless, if the nature of the asserted liability Indemnifiable Event so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense seek out a negotiated settlement of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder dispute with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party and shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, refrain during that period from commencing any judicial proceeding or other obligation of or limitation on the Indemniteeaction to enforce this Article 8. The Indemnifying Party shall have the rightIf, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expensedespite their good faith negotiations, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely parties are unable to exist a conflict of interest that would make it inappropriate, in resolve the judgment of legal counsel to dispute within the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, aforesaid period (or if the Indemnifying Party fails to diligently defend timely give the Response Notice), the Indemnified Party shall be free to exercise all rights and prosecute such remedies available to him or it hereunder, at law in equity or otherwise to enforce his or its rights under this Article 8. As used herein, "Third Party ClaimsClaim" means any demand, then claim or circumstance which, with the Indemnitee shall be entitled lapse of time or otherwise, would give rise to retain its own counsel in each jurisdiction for which a claim or the Indemnitee determines counsel is required, at the expense commencement (or threatened commencement) of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in proceeding or investigation against the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Indemnified Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cashby any other person.

Appears in 1 contract

Samples: Share Exchange Agreement (Sportsmans Wholesale Co)

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, Subject to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andIX, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate any Buyer Indemnitee believes in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make has a claim for indemnification for pursuant to Section 9.3 (a Loss under Section 7.2“Buyer Claim”), then Buyer shall, as soon as reasonably practicable after it becomes aware of such Indemnitee shall promptlyBuyer Claim, and in any event no later than ten (10) Business Days after notify Seller of such Indemnitee has knowledge Buyer Claim by means of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to describing the extent practicable, such matter Buyer Claim in reasonable detail, including the estimated amount detail and setting forth Buyer’s good faith calculation of the Losses incurred or that have been or may be sustained incurred by the applicable Buyer Indemnitee and any limitations with respect thereto (or good faith estimate thereof, in this Article VII that apply to such Lossthe event amount cannot be reasonably determined at the time) (a “Buyer Claim Notice” and, together with a Claims Notice, a “Notice”). The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by No delay in or failure to give such timely notice. In a Claims Notice by Buyer to Seller pursuant to this Section 9.8(b)(i) will adversely affect any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to of the other provisions of rights or remedies that Buyer has under this Section 7.4Agreement, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise alter or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee relieve Seller of its intention obligation to do so and indemnify the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the applicable Buyer Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money Seller is paid materially prejudiced thereby. If, by the Indemnifying Party. The Indemnifying Party shall 30th day following receipt by Seller of a Buyer Claim Notice (the “Dispute Period”), Buyer has not be released received from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver Seller notice in writing that Seller objects to the Indemnitee Buyer Claim (or the amount of Losses set forth therein) asserted in such Buyer Claim Notice (a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Party shall have the right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims“Dispute Notice”), then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available amount of Losses alleged in such Buyer Claims Notice will be conclusively deemed to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee may not settle any Third Party Claim without the consent of the Indemnifying Party. (c) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party shall thereupon pay the Indemnitee for all indemnifiable Losses, on demand, in cash.59

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Black Box Corp)

Claims Notice. (a) Except with respect If either Reinsurer or Cedant wishes to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make assert a claim for indemnification for hereunder, including, but not limited to, claims arising from a claim or demand made, or an action, proceeding or investigation instituted, by any Person not a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification is or may be claimed under this Article X (an a IndemniteeThird Party Claim”), the party seeking indemnification (the “Indemnified Party”) shall give written notice (a “Claims Notice”) to each Person from whom such indemnification is being claimed the other party (an the “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, ). The Claims Notice shall be delivered to the Escrow Agent Indemnifying Party as promptly as practicable, specifying in accordance with detail the Escrow Agreement, promptlyfacts constituting the basis for, and in any event no later than five (5) Business Daysthe estimated amount of, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Lossindemnification so asserted. The failure by any Indemnified Party to make timely delivery of such written notice shall not affect provide the Claims Notice to the Indemnifying Party’s Party as promptly as practicable shall relieve any Indemnifying Party from its indemnification obligations hereunder, except only to the extent that such failure shall actually prejudice an Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written noticeParty; provided however, that, notwithstanding the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The foregoing, an Indemnifying Party shall have no obligation to indemnify an Indemnified Party if a period of thirty (30) days after receipt Claims Notice containing the information specified above is not received by the Indemnifying Party of such notice and such evidence to agree prior to the payment termination of the Loss applicable survival periods described in Sections 10.01(a) and 10.01(b). (b) Subject to the Indemniteeprovisions of Section 10.02(c) hereof, subject to such limitations. If the Indemnifying Party does not agree to the payment upon receipt of the Loss within such thirty (30)-day perioda Claims Notice, the Indemnifying Party shall simultaneously deliver have the right to assume the defense and control of a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) with respect to which such Indemnitee is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2, then such Indemnitee shall promptly, and in any event no later than ten (10) Business Days after such Indemnitee has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee and any limitations in this Article VII that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, and other materials in such Indemnitee’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of the Third Party Claim. If the Indemnifying Party shall elect exercises its right to settle, compromise or defend such asserted liability, then it shall, within thirty (30) days after such election (or sooner, if assume the nature defense and control of the asserted liability so requires), notify the Indemnitee of its intention to do so and the Indemnitee shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any a Third Party Claim shall be made without Claim, the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed except where such settlement or compromise involves only the payment of money and the full release of any and all claims against the Indemnitee and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of or limitation on the Indemnitee. The Indemnifying Indemnified Party shall have the right, except as provided below in this Section 7.4but not the obligation, to conduct participate in (but not control) the defense of the Third Party Claim with its own counsel and control at its own expense. Any election by an Indemnifying Party to assume the defense of a Third Party Claim must be received by the Indemnified Party witl1in a reasonable time after receipt of the Indemnified Party’s Claims Notice, and failure to make such election within a reasonable time shall be deemed an election not to defend. If the Indemnifying Party elects to assume the defense of a Third Party Claim, the Indemnifying Party shall select counsel, contractors and consultants of recognized standing and competence after consultation with the Indemnified Party, shall take all steps necessary in the defense or settlement of such Third Party Claim, and shall at all times diligently and promptly pursue the resolution of such Third Party Claim. The Indemnified Party shall, and shall cause each of its directors, officers, employees, agents, representatives, Affiliates, successors and permitted assigns to, cooperate fully with the Indemnifying Party in the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne Claim defended by the Indemnifying Party. The Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, in the judgment of legal counsel to the Indemnitee, for the same counsel to represent both the Indemnitee and the Indemnifying Party, or if the Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party, or if the Indemnifying Party fails to diligently defend and prosecute such Third Party Claims, then the Indemnitee shall be entitled to retain its own counsel in each jurisdiction for which the Indemnitee determines counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee in making any appropriate counterclaim or cross-complaint, which cooperation shall include, without limitation, designating a liaison counsel to whom the Indemnifying Party may not settle any Third Party Claim without direct notices and other communications, using reasonable efforts to make witnesses available for deposition and trial, and providing records and documents to the consent of extent such witnesses, records and documents to the extent reasonably requested by the Indemnifying Party. (c) With respect The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any Losses under judgment arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense in accordance with the terms of Section 7.4(a10.02(b) and without the consent of any Indemnified Party, but only to the extent that such settlement or entry of judgment (b), if the Indemnitee is a Buyer Indemnitee i) provides solely for the payment of the Loss shall be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) by the Escrow Agentmoney, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i)provides a complete release of, if the funds or dismissal with prejudice of claims against, any Indemnified Party potentially affected by such Third Party Claim from all matters that were or could have been asserted in the Escrow Amount are inadequate, connection with such Third Party Claim. If the Indemnifying Party elects, or is deemed to have elected, not to defend a Third Party Claim, the Indemnified Party shall thereupon pay have the Indemnitee right, at its option and at the Indemnified Party’s expense, to defend such Third Party Claim in such manner as it reasonably deems appropriate; provided, however, that Indemnified Party shall not settle or compromise any Third Party Claim for all indemnifiable Losses, on demand, in cashwhich it seeks indemnification hereunder without the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld).

Appears in 1 contract

Samples: Master Reinsurance Agreement (Midwest Holding Inc.)

Claims Notice. From and after the Closing: (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Purchaser Indemnitee, Wafra Indemnitee or Seller Indemnitee other indemnified party who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 (an “IndemniteeIndemnified Party”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, promptly after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually materially prejudiced by failure to give such notice. Together with such written notice, the Indemnitee Indemnified Party shall provide the Indemnifying Party with such material information and documents as the Indemnitee Indemnified Party has in its possession regarding such claim and all material pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and incurred, including any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the IndemniteeIndemnified Party, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day 30-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and then the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter; provided that any communications between the Indemnifying Party and the Indemnified Party and their respective representatives during the above-reference fifteen (15) Business Day period shall be deemed to constitute settlement discussion materials pursuant to Federal Rule of Evidence 408 and similar state rules and shall not be submitted to or considered by the Valuation Firm or any court. If the dispute is not resolved through such negotiations, then (x) any dispute as to the value of the Loss (if the Indemnifying Party has agreed in writing that such a Loss exists) will be resolved by an independent valuation firm of national standing (the “Valuation Firm”) jointly selected by the Indemnified Party and the Indemnifying Party (and, if the parties are unable to agree upon a Valuation Firm, then the Indemnified Party and the Indemnifying Party shall each select an independent valuation firm of national standing, and the two (2) valuation firms so selected shall select a third (3rd) independent valuation firm of national standing to act as the Valuation Firm) and (y) any other dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.1110.13. The determination of the dispute by the Valuation Firm shall be final and binding on the parties, except in the case of arithmetic error by the Valuation Firm or actual fraud. The costs of the Valuation Firm shall be allocated between the Indemnified Party and the Indemnifying Party by the Valuation Firm in proportion to the extent that either of the Indemnified Party or the Indemnifying Party did not prevail on the amount of the disputed Loss as submitted to the Valuation Firm; provided that the Indemnifying Party and the Indemnified Party shall each be responsible for one half of any retainers or other upfront costs or expenses of the Valuation Firm, subject to re-allocation as set forth above. The decision of the Valuation Firm shall constitute an arbitral award that is final and binding and upon which a judgment may be entered by a court having jurisdiction thereof. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day 30-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee Indemnified Party the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII. (b) If any claim or action at law or suit in equity is instituted by a third party against an Indemnitee (each, a “Third Party Claim”) against the Indemnified Party which may give rise to a claim for indemnification against the Indemnifying Party with respect to which such Indemnitee Indemnified Party is entitled to, and wishes to, make a claim for indemnification for a Loss under Section 7.2this Agreement, then such Indemnitee Indemnified Party shall promptly, and in any event no later than ten (10) Business Days promptly after such Indemnitee Indemnified Party has knowledge of an assertion of liability from such third party, deliver to the Indemnifying Party a written notice describing, to the extent practicable, describing such matter in reasonable detail, including the estimated amount of the Losses that have been or may be sustained by the Indemnitee Indemnified Party and any limitations in this Article VII Agreement that apply to such Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually materially prejudiced by failure to give such timely notice. In any event, such delivery shall be accompanied by all information, documents, any material information and other materials documents in such IndemniteeIndemnified Party’s possession related to such Third Party Claim. The Indemnitee shall not make any admissions or acceptances with respect to such Third Party Claim. The Indemnifying Party may, subject to the other provisions of this Section 7.4, settle, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee Indemnified Party in respect of the Third Party Claim. If the Indemnifying Party shall elect to settle, compromise or defend such asserted liability, then it shall, within thirty ten (3010) days Business Days after such election (or sooner, if the nature of the asserted liability so requires), notify the Indemnitee Indemnified Party of its intention to do so and the Indemnitee Indemnified Party shall cooperate to the fullest extent possible, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such asserted liability; provided, that no settlement or compromise of any Third Party Claim shall be made without the prior written consent of the Indemnitee, Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed delayed), except where such settlement or compromise involves only the payment of money and the full express, complete and unconditional release of any and all claims against the Indemnitee Indemnified Party (and liabilities and obligations with respect thereto) and only to the extent that such money is paid by the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee Indemnified Party hereunder with respect to such asserted claim without the prior written consent of the IndemniteeIndemnified Party, unless the Indemnifying Party shall deliver to the Indemnitee Indemnified Party a duly executed agreement settling or compromising such claim with no outstanding monetary liability to, or injunctive relief against, or other obligation of or limitation on the IndemniteeIndemnified Party. The Indemnifying Party shall have the sole right, except as provided below in this Section 7.4, to conduct and control the defense of any Third Party Claim. Subject to the following sentence, all costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee Indemnified Party shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such Third Party ClaimClaim (and may control the defense, compromise or settlement of such Third Party Claim only if the Indemnifying Party does not elect to assume such control or is not permitted to assume such control pursuant to the terms of this Section 7.3); provided, however, that if (A) there exists a conflict or is reasonably likely to exist a potential conflict of interest that would make it inappropriate, in the judgment of outside legal counsel to the IndemniteeIndemnified Party, for the same counsel to represent both the Indemnitee Indemnified Party and the Indemnifying Party, (B) such Third Party Claim (i) is brought by a Governmental Authority in connection with a criminal or if regulatory Proceeding or (ii) primarily seeks (x) the Indemnitee may have available to it one imposition of a consent order, injunction or more defenses decree that would restrict the future activity or counterclaims that are inconsistent with one or more conduct of the defenses Indemnified Party or counterclaims (y) a finding or admission of a violation of Law by the Indemnified Party that may would have an adverse effect on the Indemnified Party other than as a result of monetary damages, (C) the amount in dispute exceeds the maximum amount for which an Indemnifying Party would reasonably be available expected to be liable pursuant to this Agreement in light of the Indemnifying Partylimitations on indemnification herein, if applicable, or (D) if the Indemnifying Party fails to diligently and reasonably defend the Indemnified Party (but only after providing the Indemnifying Party with reasonable notice and prosecute such Third Party Claimsan opportunity to cure), then the Indemnitee Indemnified Party shall be entitled to retain one separate counsel of its own counsel choosing (in each jurisdiction for which the Indemnitee determines counsel is requiredaddition to any necessary local counsel), at the expense of and the Indemnifying PartyParty shall be responsible for the reasonable and documented fees and expenses of such separate counsel, which fees and expenses shall be reimbursed to the Indemnified Party by the Indemnifying Party within thirty (30) days of a request therefor. If the Indemnifying Party shall choose to defend any claim, then the Indemnitee Indemnified Party shall make available to the Indemnifying Party any books, records or other documents within its direct or indirect control that relate to the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors and other personnel available or otherwise render reasonable assistance to, the Indemnifying Party and its agents. An Indemnitee The Indemnified Party may not settle any Third Party Claim without the consent of the Indemnifying Party. Party (cnot to be unreasonably withheld, conditioned, or delayed) With respect to any Losses under Section 7.4(a) and (b), if the Indemnitee is a Buyer Indemnitee the payment majority of the Loss shall aggregate amount of Losses arising from such settlement are to be paid as follows: (i) first from the Escrow Amount (to the extent of amounts in the Escrow Amount) indemnified by the Escrow Agent, without the necessity of further action, as provided in the Escrow Agreement and (ii) subject to Section 7.3(a)(i), if the funds in the Escrow Amount are inadequate, the Indemnifying Party under the terms of this Agreement. The Indemnifying Party shall thereupon pay reasonably cooperate with the Indemnitee Indemnified Party in connection with Third Party Claims, including, if and as reasonably requested by the Indemnified Party, by providing any documents or other information relevant to a claim for all indemnifiable Lossesindemnification hereunder, on demandmaking its directors, officers and other representatives reasonably available in connection with the investigation, defense, settlement or compromise of any such claim, and assisting as necessary in connection with the investigation, defense, settlement or compromise thereof. Notwithstanding the foregoing provisions of Section 7.4, in cashthe case of any Tax Claim, the provisions of Section 6.1 shall control.

Appears in 1 contract

Samples: Purchase and Sale Agreement (DigitalBridge Group, Inc.)

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