Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions: (a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense. (b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof. (c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld. (d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 8 contracts
Samples: Asset Purchase Agreement (Mac Filmworks Inc), Asset Purchase Agreement (Mac Filmworks Inc), Asset Purchase Agreement (Mac Filmworks Inc)
Conditions of Indemnification. The Company shall indemnify and hold harmless the Advisor and its Affiliates, including their respective obligations officers, directors, partners and liabilities employees, from all liability, claims, damages or losses arising in the performance of Seller their duties hereunder, and Purchaser (the "indemnifying party") related expenses, including reasonable attorneys’ fees, to the other (the "party to be indemnified") under Sections 6.01 extent such liability, claims, damages or losses and 6.02 hereof with respect to claims resulting from the assertion of liability related expenses are not fully reimbursed by third parties shall be insurance, subject to any limitations imposed by the laws of the State of Maryland and only if all of the following terms and conditionsconditions are met:
(a) Within 20 days (The directors or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process Advisor or other legal pleadingits Affiliates have determined, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, howevergood faith, that the party to be indemnified may participate course of conduct that caused the loss or liability was in the defense with counsel best interests of its own choice and at its own expense.the Company;
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer The Advisor or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim its Affiliates were acting on behalf of and or performing services for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.Company;
(c) Anything in this Section 6.03 to Such liability or loss was not the contrary notwithstanding, result of negligence or misconduct by the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.Advisor or its Affiliates; and
(d) The party Such indemnification or agreement to be indemnified hold harmless is recoverable only out of the Company’s Net Asset Value and not from its Stockholders.
(e) With respect to losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws, one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims against a particular indemnitee and finds that indemnification of the settlement and the indemnifying party will each cooperate with all reasonable requests related costs should be made, and the court considering the request for indemnification has been advised of the otherposition of the SEC and of the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws. Notwithstanding the foregoing, the Advisor shall not be entitled to indemnification or be held harmless pursuant to this Article XVIII for any activity which the Advisor shall be required to indemnify or hold harmless the Company pursuant to Article XIX. Any indemnification of the Advisor may be made only out of the net assets of the Company, including insurance proceeds, and not from Stockholders.
Appears in 6 contracts
Samples: Advisory Agreement (Strategic Storage Trust, Inc.), Advisory Agreement (Strategic Storage Trust, Inc.), Advisory Agreement (Strategic Storage Trust, Inc.)
Conditions of Indemnification. The respective obligations of Novartis and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") Reliant under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties this Article X shall be subject to the following terms and conditions:
(a) Within 20 The party claiming a right to indemnification shall, within ten (10) business days (of receipt of any claim, charge, suit or such earlier time as might be required other action, give, in accordance with Article XII, written notice to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement , of any action evidenced by service of process such claim, charge, suit or other legal pleadingaction received from a third party which is governed by the indemnity obligations of this Agreement;
(b) The indemnifying party shall conduct, or at its own expense, but in consultation with reasonable promptness after the assertion in writing other party, the defense of any claim and all such claims, charges, suits or other actions by a third party;
(c) Neither party shall settle or admit liability with respect to any such claims, charges, suits or other actions which could result in liability to the other party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed;
(d) If the indemnifying party does not take the steps necessary against any such claims, charges, suits or other action by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of claiming indemnification may defend against or settle such claimclaims, process charges, suits or other legal pleadingaction provided that that party may not settle such claims, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; providedcharges, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer suits or other pleading must be served in order to prevent judgment by default in favor of action without the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk prior written consent of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(dwithheld or delayed; however, the defense and/or settlement under this Article 10.3(d) The shall not act as a waiver of rights to indemnification under this Agreement, or any other rights or remedies of a party to be indemnified claiming indemnification and shall not excuse the indemnifying party will each cooperate with from its obligations hereunder and all reasonable requests costs and expenses incurred by the party claiming indemnification shall be subject to indemnity by the indemnifying party; and
(e) Each party will offer reasonable assistance to the other party in defending or settling the claim, at the expense of the otherindemnifying party.
Appears in 5 contracts
Samples: Promotion Agreement (Reliant Pharmaceuticals, Inc.), Promotion Agreement (Reliant Pharmaceuticals, Inc.), Promotion Agreement (Reliant Pharmaceuticals, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days A party entitled to indemnification hereunder (the “Indemnified Party”) shall notify the party or parties liable for such earlier time as might be required to avoid prejudicing indemnification (the indemnifying party's position including the entry of a default judgment“Indemnified Party”) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes (“Tax Claim”) which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 5 contracts
Samples: Securities Exchange Agreement (Beta Music Group, Inc.), Securities Exchange Agreement (Beta Music Group, Inc.), Securities Exchange Agreement (Beta Music Group, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") Company to indemnify the other (the "party to be indemnified") Investor Group under Sections 6.01 and 6.02 Section 8.1 hereof with respect to claims Damage claims, resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall will give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to will undertake the defense thereof by representatives of its own choosing and at its own expensereasonably satisfactory to the indemnified party; provided, however, that failure to provide such notice will not relieve the indemnifying party to be indemnified may participate in the defense with counsel of its own choice obligations hereunder unless (and at its own expense.
(bthen solely to the extent) In the event that it is actually prejudiced by such failure to receive such notice. If the indemnifying party, by the 30th day within ten (10) days after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend against such claim, the indemnified party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(cb) Anything in this Section 6.03 8.3 to the contrary notwithstanding, (i) an indemnified party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of such claim, (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment (x) which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in respect of such claim. If claim or (y) as a result of which injunctive or other equitable relief would be imposed against the indemnified party, and (iii) the indemnified party shall have the right to control the defense or settlement of that portion of any claim which seeks an order, injunction or other equitable relief against the indemnified party which, if successful, could materially interfere with the business, operations, assets, financial condition or prospects of the indemnified party; provided, however, that in connection with the defense or settlement of the portion of such claim involves more than which seeks equitable relief, the payment of money, indemnified party shall cooperate with the indemnifying party shall not settle and use its reasonable best efforts to limit the claim without the prior consent liability of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests for the damages portion of the othersuch claim.
Appears in 4 contracts
Samples: Preferred Membership Unit Purchase Agreement, Membership Unit Purchase Agreement (FVA Ventures, Inc.), Membership Unit Purchase Agreement (FVA Ventures, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser PQS, Probex or Parent, as the case may be (the "indemnifying partyParty") to the other Persons (the "party Party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties any claim or demand for indemnification shall be subject to the following terms and conditions:
13.3.1 The Party to be indemnified shall promptly give notice to the indemnifying Party of any claim, whether between the Parties or brought by a third party, specifying both the basis for and the amount of such claim, to the extent specified or otherwise known. If the claim or demand for indemnification relates to a claim, action, suit, or proceeding asserted or filed by a Third Party against the Party to be indemnified (aa "Third-Party Claim"), then such notice shall be given by the Party to be indemnified within twenty (20) Within 20 days of receipt thereof (or such earlier time as might be required to avoid prejudicing the indemnifying partyParty's position including position). The failure of the entry Party to be indemnified to give such notice shall not relieve the indemnifying Party of its obligations hereunder, except to the extent the indemnifying Party is actually prejudiced thereby.
13.3.2 Following receipt of notice from the Party to be indemnified of a default judgmentclaim or demand for indemnification, the indemnifying Party shall have twenty (20) after days to make such investigation of the claim or demand as the indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Party to be indemnified agrees to make available to the indemnifying Party (or its authorized representatives) the information relied upon by the Party to be indemnified to substantiate the claim or demand. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such twenty (20) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim or demand, then the indemnifying Party shall immediately pay to the Party to be indemnified the full amount of the claim or demand to the extent that such Party to be indemnified is entitled to indemnification pursuant to this Section 13.3. If the Party to be indemnified and the indemnifying Party do not agree within such period (or any mutually agreed upon extension thereof), then the Party to be indemnified may pursue or exercise any remedies or rights available to it.
13.3.3 After receipt of notice of commencement of any action Third-Party Claim evidenced by service of process or other legal pleading, or with reasonable promptness after the any other assertion in writing of any claim by a third partyThird-Party Claim, the party Party to be indemnified shall give the indemnifying party Party written notice thereof together with a copy of such claim, process process, or other legal pleading, and pleading within the period set forth in the second sentence of Section 13.3.1. The failure of a Party to be indemnified to give the indemnifying party Party such notice shall not relieve the indemnifying Party of its obligations under Section 13.3 except to the extent the indemnifying Party is actually prejudiced thereby. The indemnifying Party shall have the right to undertake the defense thereof defense, compromise, or settlement of the Third-Party Claim, by representatives of its own choosing and at its own expense; providedexpense so long as the indemnifying Party agrees to assume and conduct, howeverand diligently conducts, that such defense (or, if applicable, compromise or settlement). In such event the party Party to be indemnified may participate in the defense defense, compromise, or settlement with counsel of its own choice and at its own expense.
(b) In the event that 13.3.4 If the indemnifying partyParty, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimplaintiff), does not elect to defend against such claimThird-Party Claim, then the party Party to be indemnified will shall have the right (upon further notice to the indemnifying partyParty) have the right to retain counsel and undertake the defense, compromise compromise, or settlement of such claim Third-Party Claim on behalf of of, and for the account and risk of of, the indemnifying party Party and at the indemnifying partyParty's expense, subject to the right of the indemnifying party Party to assume participate, with its own counsel and at its own expense, in the defense defense, settlement or compromise. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything the period set forth in this Section 6.03 13.3.4 (or any mutually agreed upon extension thereof) to the contrary notwithstandingvalidity and amount of such Third-Party Claim, then the indemnifying Party shall immediately pay to the Party to be indemnified the amount so agreed.
13.3.5 If there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying Party and the Party to be indemnified in defending, compromising, or settling a Third-Party Claim, the indemnifying party Party shall be responsible for paying for separate counsel for the Party to be indemnified. In such event, however, if there is more than one Party to be indemnified, the indemnifying Party shall not settle be responsible for paying for more than one separate counsel (which may be a firm of attorneys) to represent the Parties to be indemnified, regardless of the number of Parties to be indemnified.
13.3.6 The indemnifying Party may compromise, settle, or resolve any claim Third-Party Claim without the consent of the party Party to be indemnified unless if such settlement compromise, settlement, or resolution involves only the payment of money by the indemnifying Party (whether on its own behalf or on behalf of the Party to be indemnified) and the claimant provides to the party Party to be indemnified a release from all liability Liability in respect of such claim. If the settlement of the claim involves more than the payment of moneyOtherwise, the indemnifying party shall Party may not settle compromise, settle, or resolve the claim without the prior written consent of the party Party to be indemnified, which consent shall may not be unreasonably withheld.
(d) 13.3.7 The party Party to be indemnified and the indemnifying party will each Party must cooperate with all reasonable requests of the other in the defense of any Third-Party Claim.
13.3.8 Notwithstanding anything to the contrary in this Section 13.3, with respect to an obligation of PQS to indemnify Probex pursuant to Section 13.2.1 above with respect to a PQS Environmental Claim that requires any Remediation, PQS may elect to implement and complete such Remediation. If PQS elects to conduct the Remediation:
(i) PQS, in good faith, will coordinate the schedule of the Remediation with Probex so that disruptions of Probex's operations will be minimized;
(ii) PQS will obtain the prior written approval of Probex, which approval will not be unreasonably withheld, for any consultant or contractor retained by PQS to investigate, design or implement the Remediation;
(iii) PQS will conduct the Remediation in compliance with all applicable federal, state and local laws and regulations and as directed by the appropriate Governmental Body; and
(iv) PQS will not agree to or select any Remediation that imposes any material obligation on Probex, including, without limitation, the obligation to sign manifests or obtain permits, without the prior written consent of the Probex, which consent shall not be reasonably withheld.
(v) During the period in which PQS is conducting a Remediation pursuant to this Section 13.3.8, Probex shall provide PQS and its consultants and contractors reasonable access to the affected property for the purpose of conducting activities related to the Remediation, including where necessary the use of heavy equipment. Any such access shall be subject to reasonable restrictions imposed by Probex, including, without limitation, restrictions related to worker safety. PQS shall expeditiously remove from the property all drill cuttings, soil, debris or liquids generated from or in connection with the Remediation and shall restore the property and any existing structures or equipment removed or damaged in the course of the Remediation to a condition substantially the same as the condition that existed immediately prior to the Remediation. PQS or their consultants and contractors shall provide Probex at least five (5) business days' notice of the activities to be conducted on the property, which notice may be in the form of a schedule of activities.
(vi) PQS and Probex agree that any Remediation shall meet all requirements of the Governmental Body or Bodies directing the Remediation and shall not materially impede or increase the cost of Probex's business operations on the affected property. Probex acknowledges that the Remediation may be a "risk-based" Remediation pursuant to, and consistent with applicable federal, state and local laws and regulations, which may require the establishment of certain restrictions or conditions affecting the property on which the Remediation is being conducted. Probex agrees not to object to any such "risk-based" Remediation unless Probex's agreement will, in the good faith judgment of Probex, expose Probex to liability to third parties.
(vii) PQS shall not take any action or make any communication which has a material effect on the resolution or outcome of any Environmental Claim which could lead to the filing of an Environmental Claim against Probex, without providing at least five (5) business days advance notice (unless otherwise required by law) to Probex. Any material breach of this obligation shall relieve Probex or Parent of Liabilities under this Agreement with respect to the applicable Environmental Claim to the extent Probex or Parent has been prejudiced by the lack of timely and adequate notice. This notification requirement shall not apply to communications which are part of or relate to a judicial or administrative proceeding in which the Parties are litigating claims against each other.
Appears in 4 contracts
Samples: Services Agreement (Probex Corp), Services Agreement (Probex Corp), Services Agreement (Probex Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Section 7.2 with respect to claims resulting from Damages for which it must indemnify another party hereunder (collectively, the assertion of liability by third parties "Indemnified Claims") shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written notice thereof together with of any such Indemnified Claim which notice shall set forth in reasonable detail the basis for and amount of the Indemnified Claim, and the circumstances giving rise thereto. If the Indemnified Claim is a third-party claim, the notice must contain a copy of such any papers served on the indemnified party.
(b) If the Indemnified Claim is not a third-party claim, process or other legal pleading, and unless within thirty (30) days of receipt by the indemnifying party of notice of the Indemnified Claim the indemnifying party sends written notice to the indemnified party disputing the facts giving rise to the Indemnified Claim or the amount of Damages stated in the notice, the Damages stated in the notice shall have become due and payable upon the right expiration of such thirty (30) day period. If, however, the indemnifying party disputes the facts, giving rise to the Indemnified Claim or the amount of Damages stated in the notice within such thirty (30) day period and the dispute cannot be resolved within the following ninety (90) days, the dispute shall be submitted to arbitration under the rules of the American Arbitration Association in Chicago, Illinois.
(c) If the Indemnified Claim is a third-party claim, the indemnifying party may undertake the defense thereof at its own expense by representatives of its own choosing reasonably satisfactory to the indemnified party and at its own expense; provided, however, that will consult with the indemnified party to be indemnified may participate in concerning such defense during the defense with counsel of its own choice and at its own expense.
(b) In the event that course thereof. If the indemnifying party, by the 30th day within thirty (30) days after receipt of notice of any Indemnified Claim (or such claim (orshorter period as is necessary to prevent prejudice to the indemnified party, if earlier, by such thirty (30) day period would prejudice the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor rights of the person asserting such claimindemnified party), does not elect fails to defend against such claimdefend, the indemnified party to be indemnified will (upon further notice to the indemnifying party) will have the right to undertake the defense, compromise or settlement of such claim Indemnified Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right expense of the indemnifying party. In addition, if there is a reasonable probability that a third-party Indemnified Claim may materially and adversely affect an indemnified party, the indemnified party shall have the right, at its own cost and expense, to assume the defense of such claims at any time prior to settlementdefend, compromise or final determination thereofsettle such Indemnified Claim.
(cd) Anything in this Section 6.03 7.3 to the contrary notwithstanding, neither the indemnifying party shall not nor the indemnified party, as the case may be, may settle or compromise any claim Indemnified Claim or consent to entry of any judgment in respect thereof, without the written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnifiedother, which consent shall not be unreasonably withheldwithheld or delayed.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 4 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Carrols Restaurant Group, Inc.), Asset Purchase Agreement (Carrols Restaurant Group, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") Buyer with respect to the other (the "party its indemnities pursuant to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims this Article XIII, resulting from the any claim or other assertion of liability by third parties (hereinafter called collectively, "Third Party Claims"), shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of Seller must give Buyer written notice of commencement any such Claim within ninety (90) days after Seller receives notice thereof, but failure to give notice in such period shall only relieve Buyer of any action evidenced by service of process or other legal pleading, or with reasonable promptness after its indemnity obligations if and to the assertion in writing of any claim by a third party, extent the party to be indemnified shall give delay materially prejudices the indemnifying party written notice thereof together with a copy defense of such claim, process or other legal pleading, and the indemnifying party Claim.
(b) Buyer shall have the right to undertake the defense thereof promptly undertake, without conditions or reservation of rights, by counsel or other representatives of its own choosing and at its own expense; providedreasonably acceptable to Seller, however, that the party to be indemnified may participate in the defense with counsel of its own choice such Claim at Buyer's cost and at its own expenserisk.
(bc) In the event that the indemnifying partyBuyer shall elect not to undertake such defense, by the 30th day or within a reasonable time after receipt of notice of any such claim (orClaim from Seller shall fail to defend, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will Seller (upon further written notice to the indemnifying partyBuyer) shall have the right on behalf of and for the account and risk of Buyer to undertake the defense, compromise or settlement of such claim on behalf Claim by counsel or other representatives of Seller's own choosing. In such event, Buyer shall pay to Seller, in addition to any other sums required to be paid hereunder, the costs and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of expenses incurred by Seller in connection with such claims at any time prior to settlementdefense, compromise or final determination thereofsettlement as and when such costs and expenses are so incurred.
(cd) Anything in this Section 6.03 13.03 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect Seller, Seller shall have the indemnifying party shall not settle any claim without right, at its own cost and expense, to participate in the consent defense, compromise or settlement of the party Claim, (ii) Buyer shall not, without Seller's written consent (such consent not to be indemnified unless such settlement involves only unreasonably withheld, conditioned or delayed), settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the payment of money and giving by the claimant provides or the plaintiff to the party to be indemnified Seller a release from all liability in respect of such claim. If Claim in a form reasonably satisfactory to Seller, (iii) in the settlement event that Buyer undertakes defense of any Claim, Seller, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with Buyer and its counsel or other representatives concerning such Claim, and Xxxxx and Seller and their respective counsel or other representatives shall reasonably cooperate with respect to such Claim, and (iv) in the event that Buyer undertakes defense of any Claim, Buyer shall have an obligation to keep Seller informed of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent status of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified defense of such Claim and the indemnifying party will each cooperate furnish Seller with all reasonable requests documents, instruments and information that Seller shall reasonably request in connection therewith. Notwithstanding the foregoing, in the event Buyer undertakes the defense of any Claim, Seller shall have the otherright to employ its own counsel at Buyer's expense if Seller shall have reasonably concluded and specifically notified Buyer that there may be one or more specific defenses available to it which are different from or additional to those available to Buyer or there otherwise exists a conflict of interest between Seller and Buyer.
Appears in 3 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnified Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 7 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 7.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 3 contracts
Samples: Securities Exchange Agreement (Brighton Technologies Corp), Securities Exchange Agreement (Great American Backrub Store Inc), Securities Exchange Agreement (Decorize Inc)
Conditions of Indemnification. The respective several obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying partyINDEMNIFYING PARTY") ), to the other (the "party to be indemnifiedPARTY TO BE INDEMNIFIED") under Sections 6.01 and 6.02 Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 7.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Savvis Communications Corp), Securities Purchase Agreement (Savvis Communications Corp), Securities Purchase Agreement (Savvis Communications Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") Company to indemnify the other (the "party to be indemnified") Indemnified Parties under Sections 6.01 and 6.02 hereof Section 6.2 with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified The Indemnified Party shall give the indemnifying party written Company prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim, and the indemnifying party Company shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b) In If the event that the indemnifying partyCompany, by the 30th day within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend any Indemnified Party against which such claimClaim has been asserted, the party to be indemnified will such Indemnified Party shall (upon further notice to the indemnifying partyCompany) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expenseCompany, subject to the right of the indemnifying party Company to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.; and
(c) Anything in this Section 6.03 6.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect an Indemnified Party other than as a result of money damages or other money payments, such Indemnified Party shall have the indemnifying party right, at its own cost and expense, to defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the Company's consent (which consent shall not settle any claim be unreasonably withheld) such Indemnified Party shall be deemed to have waived all rights hereunder against the Company for money damages arising out of such Claim, and (ii) the Company shall not, without the written consent of such Indemnified Party, settle or compromise any Claim or consent to the party to be indemnified unless such settlement involves only entry of any judgment that does not include as an unconditional term thereof the payment of money and giving by the claimant provides or the plaintiff to the party to be indemnified such Indemnified Party a release from all liability in respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Ameritech Corp /De/), Stock Purchase Agreement (Microleague Multimedia Inc), Stock Purchase Agreement (Hearst Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") If any indemnified party expects to seek indemnification under this Article, such party shall promptly give notice to the indemnifying party of its claim of indemnification and the basis therefor. If indemnification is sought based on a claim asserted by a Third Party, the party seeking indemnification shall also provide to the indemnifying party copies of any pleadings or other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting documents received from the assertion Third Party evidencing the claim. Failure to notify an indemnifying party in accordance with this Section 10.3 shall not relieve the indemnifying party of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or its obligation of indemnity unless such earlier time as might be required to avoid prejudicing failure materially prejudices the indemnifying party's position including rights. An indemnifying party may participate at its own expense in the entry defense of any Third Party claim as to which it receives a default judgment) notice of claim of indemnity. If it so elects within a reasonable time after receipt of notice of commencement of any action evidenced by service of process or other legal pleadingsuch notice, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior claim with counsel chosen by it and approved by the indemnified party unless the indemnified party reasonably objects to settlement, compromise such assumption on the ground that there may be legal defenses available to it which are different from or final determination thereof.
(c) Anything in this Section 6.03 addition to those available to the contrary notwithstandingindemnifying party. If the indemnifying party assumes the defense of the claim, the indemnifying party shall not settle be liable for any claim without fees and expenses of counsel for the consent of indemnified party incurred thereafter in connection with the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, In no event shall the indemnifying party shall not settle be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the claim without the prior consent same jurisdiction arising out of the same general allegations or circumstances. No offer of settlement, settlement or compromise shall be binding on either party to be indemnified, hereto without its prior written consent (which consent shall not be unreasonably withheld) unless such settlement fully releases the other party without any liability, loss, cost or obligation to such party.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 3 contracts
Samples: License Agreement (Healthetech Inc), License Agreement (Healthetech Inc), License Agreement (Healthetech Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and Purchaser Principal Shareholders and Parent (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 11.01 and 6.02 hereof 11.02 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 3 contracts
Samples: Merger Agreement (Smith Jack T), Merger Agreement (Palmer J N Family Partnership), Merger Agreement (Ladin William E Jr)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnifying Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 11 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: Merger Agreement (Leweandowski Fanny), Merger Agreement (Cirus Telecom Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within In order for a member of the Purchaser Group or Company Group to be entitled to indemnification pursuant Section 8.02 of this Agreement in respect of, arising out of, or involving a claim made by any person not a party to this Agreement (a "Third Party Claim"), the indemnified party must within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process action, suit or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by proceeding relating to a third party, the party to be indemnified shall Third Party Claim give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect the indemnifying party's indemnity obligation hereunder except as and to the extent that such failure shall actually and materially adversely affect the defense of such claim), and, subject to Sections 8.03(b), (c) and (e) below, the indemnifying party shall have the right to undertake the defense thereof by representatives counsel of its own choosing and at its own expensethat is reasonably acceptable to the indemnified party; provided, however, that if the indemnifying party is also a party to such proceeding and the indemnified party determines in good faith upon advice of counsel that joint representation would be inappropriate, the indemnifying party shall not have the right to undertake such defense but shall remain liable for the fees and expenses of counsel incurred by the indemnified may participate party in the defense with counsel of its own choice and at its own expensedefending such Third Party Claim.
(b) In the event that the indemnifying party, by the 30th 20th day after receipt of notice of any such claim Third Party Claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimThird Party Claim), does not elect to defend against such claim, the indemnified party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, it being understood that the indemnifying party shall control such defense.
(d) If the indemnifying party assumes the defense of a Third Party Claim, (i) no compromise or settlement of such Third Party Claim may be effected by the indemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Law or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party and (ii) the indemnified party will have no liability with respect to any compromise or settlement of such Third Party Claim effected without its consent.
(e) Anything in this Section 6.03 8.03 to the contrary notwithstanding, the indemnifying party shall not settle be entitled to assume the defense of any Third Party Claim if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with counsel, cannot be separated from any related claim without the consent for money damages (it being understood that if such equitable relief or other relief portion of the party to Third Party Claim can be indemnified unless such settlement involves only the payment of so separated from that for money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of moneydamages, the indemnifying party shall not settle be entitled to assume the defense of the portion relating to money damages). In such event, the indemnified party will have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party; provided, that no compromise or settlement of such Third Party Claim may be effected by the indemnified party without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldindemnifying party's consent.
(df) The party to be In connection with any Third Party Claim, the indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.Company and the Company will cooperate with all reasonable requests of the indemnified party. 52
Appears in 2 contracts
Samples: Securities Purchase Agreement (Labone Inc/), Securities Purchase Agreement (Welsh Carson Anderson & Stowe Ix Lp)
Conditions of Indemnification. The respective obligations and liabilities of the Company and Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 8.1 and 6.02 hereof 8.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: Stock Purchase Agreement (NewMarket Technology Inc), Stock Purchase Agreement (Virtualhealth Technologies Inc.)
Conditions of Indemnification. The respective several obligations and liabilities of Seller the Purchaser, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 7.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Reuters Group PLC), Securities Purchase Agreement (Savvis Communications Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Selling Shareholders, on the one hand, and Purchaser the Purchaser, on the other hand (herein sometimes called the "indemnifying party") ), to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 and Section 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Except with the contrary notwithstanding, the indemnifying party shall not settle any claim without the prior written consent of the indemnified party, no indemnifying party, in the defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the indemnified party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to be such indemnified unless such settlement involves only the payment party of money and the claimant provides to the party to be indemnified a release from all liability with respect to such claim or litigation. In the event that the indemnified party shall in good faith determine that the indemnified party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the indemnifying party in respect of such claim. If claim or any litigation relating thereto, the settlement indemnified party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to such claim at the sole cost of the claim involves more than indemnifying party; provided, however, that if the payment of moneyindemnified party does so take over and assume control, the indemnifying indemnified party shall not settle the such claim or litigation without the prior written consent of the party indemnifying party, such consent not to be indemnified, which consent shall not be unreasonably withheld.
(d) The In connection with any such indemnification, the indemnified party to be indemnified and the indemnifying party will each shall cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Golden Sky Systems Inc), Stock Purchase Agreement (Golden Sky Systems Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") If either Party proposes to seek indemnification from the other (under the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from provisions of this Section IX, it shall notify the assertion other Party within 15 days of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement any Claim and shall cooperate fully with the other Party in the defense of such claims or suits. The indemnified Party shall cooperate with the indemnifying Party (at the indemnifying Party’s expense) in all respects in connection with the defense of any action evidenced by service of process or other legal pleadingsuch Claim. The indemnifying Party shall, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party upon written notice thereof together from the indemnified Party of a Claim, undertake to conduct all proceedings or negotiations in connection with a copy of such claimthe Claim, process or other legal pleadingassume the defense thereof, and all other required steps or proceedings to settle or defend any such Claim, including the indemnifying party selection of counsel that shall be approved by the indemnified Party, which approval shall not be unreasonably withheld, and payment of all reasonable expenses. The indemnified Party shall have the right to undertake the defense thereof by representatives of its own choosing employ separate counsel and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own the indemnified Party’s sole expense.
(b) In the event that . If the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect Party fails to defend against such claimor settle in good faith any Claim as provided above, then the party to be indemnified will (upon further notice to the indemnifying party) Party shall have the right to undertake the defense, compromise or settlement take over sole control of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlementthe Claim and all negotiations for its settlement or compromise, compromise provided that the indemnifying Party shall be liable for (and shall pay as they become due) all costs and expenses (including attorneys’ fees) reasonably incurred by the indemnified Party in its defending or final determination thereof.
(c) Anything in this Section 6.03 to negotiating settlement of the contrary notwithstandingClaim. Notwithstanding the foregoing, the indemnifying party shall not settle any claim without Party primarily responsible for handling the Claim (as determined above) will first obtain the prior written consent of the party to be indemnified unless such other Party for any settlement involves only of a Claim that (i) does not include a complete release of the payment of money and the claimant provides to the party to be indemnified a release other Party from all liability in with respect of such claim. If thereto, (ii) compromises the settlement rights of the claim involves more than other Party, or (iii) imposes any restrictions on the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldother Party.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: License Agreement (Affymetrix Inc), Diagnostic Product and Instrument Agency Agreement (Affymetrix Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Sellers and Purchaser Buyer (herein sometimes called the "indemnifying party") to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 and 6.02 Section 10.02 hereof with respect to third party claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing writing, formal or informal, of any claim claim, audit or inquiry by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to respond to such action, claim, audit or inquiry and to undertake the defense thereof by representatives of its own choosing and at its own expenseto enter into a settlement or compromise thereof or consent to a judgment with respect thereto; provided, however, the indemnifying party shall not, without the prior written consent of the party to be indemnified, settle or compromise any claim or consent to the entry of any judgment (i) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the party to be indemnified may participate a release from all liability in respect of such claim, or (ii) that contemplates any payment or performance by the defense with counsel of its own choice and at its own expenseparty to be indemnified.
(b) In in the event that the indemnifying party, by the 30th 15th day after receipt of notice of any such claim claim, audit or inquiry (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to respond to such action, claim, audit or inquiry and to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 10 days' prior written notice to the effectiveness of any such proposed settlement or compromise; and
(c) Anything in this Section 6.03 to the contrary notwithstandingIn connection with any such indemnification, the indemnifying indemnified party shall not settle any claim without the consent cooperate in all reasonable requests of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldparty.
(d) The Notwithstanding the foregoing, nothing in this Section 10.03 shall be deemed to delay or prevent the right of any party to be indemnified and from commencing any action to compel the indemnifying party will each cooperate with all reasonable requests of the otherto pay any Damages or obligations described herein.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Teletrac Inc /De), Asset Purchase Agreement (Teletrac Inc /De)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days A party entitled to indemnification hereunder (the “Indemnified Party”) shall notify the party or parties liable for such earlier time as might be required to avoid prejudicing indemnification (the indemnifying party's position including the entry of a default judgment“Indemnified Party”) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes (“Tax Claim”) which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: Securities Exchange Agreement (League Now Holdings Corp), Securities Exchange Agreement (Swordfish Financial, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnified Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Columbialum LTD), Securities Exchange Agreement (Global Itechnology Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 5.1 and 6.02 5.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any legal action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing (but subject to the approval of the indemnified party which approval will not be unreasonably withheld or delayed) and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expenseexpense and, provided further, that the failure of the party to be indemnified to give timely notice shall not affect the right to indemnification hereunder except to the extent (and then only to the extent) the indemnifying party proves actual damages caused by such failure.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims in accordance with this Section 5.3(b) at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 5.3 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hyperfeed Technologies Inc), Asset Purchase Agreement (Hyperfeed Technologies Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying partyIndemnifying Party") to the other (herein sometimes called the "party to be indemnifiedIndemnified Party") under Sections 6.01 9.1 and 6.02 9.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice (referred to herein as "notice") of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing writing, formal or informal, of any claim claim, audit or inquiry by a third partyperson (referred to herein as a "claim"), the party to be indemnified Indemnified Party shall give the indemnifying party Indemnifying Party written notice thereof together with a copy of the document asserting such claim, process or other legal pleading, and the indemnifying party Indemnifying Party shall have the right to respond to such claim and to undertake the defense thereof by representatives a representative of its own choosing and at its own expenseto enter into a settlement or compromise thereof or consent to a judgment with respect thereto; provided, however, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of judgment (i) that does not include as an unconditional term thereof the party giving by the claimant or the plaintiff to be indemnified may participate the Indemnified Party a release from all liability in respect of such claim, or (ii) that contemplates any payment or performance by the defense with counsel of its own choice and at its own expenseIndemnified Party.
(b) In the event that the indemnifying partyIndemnifying Party, by the 30th 20th day after receipt of notice of any such a claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other a responsive pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), (i) does not elect to defend against such claim, and (ii) if an election to defend is made, does not provide reasonable assurances to the party Indemnified Party of the Indemnifying Party's (or its insurer's) ability to pay defense costs and indemnity costs likely to be indemnified will (incurred with respect to the claim, the Indemnified Party will, upon further notice to the indemnifying party) Indemnifying Party, have the right to respond to such claim and to undertake the to defense, compromise or settlement of such claim on behalf of and for the account and risk of loss of the indemnifying party and at the indemnifying party's expenseIndemnifying Party, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims claim upon satisfying conditions (i) and (ii) above at any time prior to the settlement, compromise or final determination thereof (if such assumption be permitted by any court or other tribunal having jurisdiction thereof.
), provided that the Indemnifying Party shall be given at least 15 days' prior written notice of the effectiveness of any such proposed settlement or compromise; (c) Anything in this Section 6.03 to the contrary notwithstandingIn connection with any such indemnification, the indemnifying party Indemnified Party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability cooperate in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the otherIndemnifying Party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Goran Capital Inc), Stock Purchase Agreement (Symons International Group Inc)
Conditions of Indemnification. The respective indemnification obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Parties hereto with respect to claims resulting from the assertion of liability made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be The indemnified shall Party will give the indemnifying party written Party prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party Party shall have the right to undertake the defense thereof thereof, at the indemnifying Party's expense, by representatives of its own choosing chosen by the indemnifying Party and at its own expense; provided, however, that reasonably acceptable to the party to be indemnified may participate in the defense with counsel of its own choice and at its own expenseParty.
(b) In the event that If the indemnifying partyParty undertakes the defense of any such claim, the indemnified Party shall, to the best of its ability, assist the indemnifying Party, at the indemnifying Party's expense, in the defense of such claim and shall promptly send to the indemnifying Party, at the indemnifying Party's expense, copies of any documents received by the 30th day indemnified Party that relate to such claim.
(c) If the indemnifying Party, within a reasonable time after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified Party against which such claimclaim has been asserted, the party to be indemnified will Party shall (upon further notice to the indemnifying partyParty) have the right to undertake the defense, compromise compromise, or settlement of such claim on behalf of and for the account and risk of the indemnifying party and Party, at the indemnifying partyParty's expense, subject to the right of the indemnifying party Party to assume the defense of such claims claim at any time prior to settlement, compromise compromise, or final determination thereof.
(cd) Anything If, in this Section 6.03 the opinion of the indemnified Party's legal counsel, a conflict of interest with respect to the contrary notwithstanding, the indemnifying party shall not settle any claim without exists between the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified Party against which a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified has been asserted and the indemnifying party will each cooperate Party, then such indemnified Party shall have the right to retain its own counsel with all respect to such claim; provided that the reasonable requests fees and expenses of such counsel shall be at the expense of the otherindemnifying Party.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Amazing Technologies Corp.), Asset Purchase Agreement (Amazing Technologies Corp.)
Conditions of Indemnification. The respective obligations and liabilities of Seller Shareholder, Parent and Purchaser Merger Sub (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 8.1 and 6.02 hereof 8.2 above with respect to claims resulting from the assertion of liability by third parties ("Third Party Claims") shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified. The indemnified party will not settle any claim without the consent of the indemnifying party, which consent shall will not be unreasonably withheldwithheld or delayed; provided, however, if such consent is not given, then the indemnifying party shall be responsible for all costs and expenses pertaining to such matter thereafter and all judgments, settlements or the like in excess of the amount of such settlement offer.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: Merger Agreement (Mobility Electronics Inc), Merger Agreement (Mobility Electronics Inc)
Conditions of Indemnification. The respective obligations of Novartis and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") Reliant under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties this Article 5 shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of The party claiming a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives indemnification shall, within ten (10) business days of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (orclaim, if earliercharge, by the 10th day preceding the day on which an answer suit or other pleading must be served action, give, in order to prevent judgment by default in favor of the person asserting such claim)accordance with Article 6, does not elect to defend against such claim, the party to be indemnified will (upon further written notice to the indemnifying party) have , of any such claim, charge, suit or other action which is governed by the right indemnity obligations of this Agreement but the failure to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of notify the indemnifying party and at the indemnifying party's expense, subject to the right of will not relieve the indemnifying party of any Liability that it may have to assume the party claiming a right of indemnification, except to the extent that the defense of such claims action by the indemnifying party is prejudiced by the failure to give such notice;
(b) The indemnifying party shall conduct, at its own expense, the defense of any time prior to settlementand all such claims, compromise charges, suits or final determination thereof.other actions by a third-party;
(c) Anything in this Section 6.03 Each party will offer reasonable assistance to the contrary notwithstanding, other party in defending or settling the indemnifying claim. Neither party shall not settle or admit liability with respect to any claim such claims, charges, suits or other actions which could result in liability to the other party without the prior written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnifiedother party, which consent shall not be unreasonably withheldwithheld or delayed; provided however, neither party may settle a claim or action related to a Liability without the consent of the other party, if such settlement would impose any monetary obligation on the other party or require the other party to submit to an injunction or otherwise limit the other party’s rights under this Agreement.
(d) The party to be indemnified and If the indemnifying party will each cooperate with does not take the steps necessary against any such claims, charges, suits or other action by a third-party, the party claiming indemnification may defend against or settle such claims, charges, suits or other action, provided, that such party may not settle such claims, charges, suits or other action without the prior written consent of the indemnifying party which consent shall not be unreasonably withheld or delayed; provided however, the defense and/or settlement under this Article 5 shall not act as a waiver of rights to indemnification under this Agreement or any other rights or remedies of a party claiming indemnification and shall not excuse the indemnifying party from its obligations hereunder, and all reasonable requests of costs and expenses incurred by the otherparty claiming indemnification shall be subject to indemnity by the indemnifying party.
Appears in 2 contracts
Samples: Exclusive Sublicense Agreement, Exclusive Sublicense Agreement (Reliant Pharmaceuticals, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") party to the other (the "party to be indemnified") indemnified under Sections 6.01 6.1 and 6.02 hereof 6.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party, in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior written consent of the party to be indemnified, which such consent shall not to be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: Partnership Interest Purchase Agreement (U S Physical Therapy Inc /Nv), Partnership Interest Purchase Agreement (U S Physical Therapy Inc /Nv)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 5.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 5.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Savvis Communications Corp), Securities Purchase Agreement (Welsh Carson Anderson Stowe Viii Lp)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Shareholders and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 Section 9.1 and 6.02 hereof Section 9.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Boundless Motor Sports Racing Inc), Asset Purchase Agreement (Boundless Motor Sports Racing Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Accredited Holders, on the one hand, and Purchaser the Parent, on the other hand (herein sometimes called the "“indemnifying party") ”), to the other (herein sometimes called the "“party to be indemnified"” or the “indemnified party”) under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 30 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything anything in this Section 6.03 9.04 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnified party shall not, without the prior written consent of the indemnifying party, settle or compromise any claim or content to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.;
(d) The any rights of the indemnified party under this Article IX based on the breach of a representation, warranty or covenant or based on the failure of such representation or warranty to be true as of the date hereof or the Closing Date shall not be diminished or otherwise affected in any way as a result of the existence of such indemnified and party’s Knowledge of such breach or untruth as of the indemnifying date hereof or as of the Closing Date, regardless of whether such Knowledge exists as a result of the indemnified party’s investigation or as a result of disclosure by the Company (or any other Person), unless such disclosures were set forth in this Agreement or in any applicable schedules hereto; and
(e) in connection with any such indemnification, the indemnified party will each cooperate with in all reasonable requests of the otherindemnifying party. In the event that the “indemnifying party” or the “party to be indemnified” as described in this Section 9.04 is the Shareholders as a group, then any notices required to be given to or by, and all other actions or decisions required to be taken or made by, such “indemnifying party” or the “party to be indemnified” as provided in this Section 9.04, may be given to or by, or may be taken or made by, the Shareholders’ Representative.
Appears in 1 contract
Samples: Merger Agreement (Liveperson Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Reorganized Teletrac, on the one hand, and Purchaser the Purchasers, on the other hand (herein sometimes called the "indemnifying party") ), to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 and 6.02 Section 10.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (PROVIDED, HOWEVER, that failure to give such notice shall not affect the obligations of the indemnifying party under this Article X unless and to the extent that such failure shall be prejudicial to the defense of such claim by the indemnifying party), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 10.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment that does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Samples: Senior Secured Note and Class a Warrant Purchase Agreement (Teletrac Holdings Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller ZNC and Purchaser Investor (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 8.1 and 6.02 hereof 8.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and at its own expense.
(b) In the event that the indemnifying party, expenses of which counsel shall be paid by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will unless (upon further notice to the indemnifying partyi) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party has agreed to pay such fees and at the indemnifying party's expenseexpenses, subject to the right of (ii) the indemnifying party has failed to assume the defense of such claims at action or (iii) the named parties to any time prior to settlement, compromise or final determination thereof.
such action (cincluding any impleaded parties) Anything in this Section 6.03 to the contrary notwithstanding, include both the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Corporation and Shareholders and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 11.01 and 6.02 hereof 11.02 with respect to claims laims resulting from the assertion of liability by third parties shall be subject ubject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified). Except as set forth in Section 13.06, the failure to promptly deliver a notice of an indemnity claim hereunder shall not relieve the indemnifying party of its own expenseobligations to the indemnified party with respect to such claim except to the extent that the resulting delay is materially prejudicial to the defense of such claim.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) . The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller an Indemnitee and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") an Indemnitor under Sections 6.01 and 6.02 hereof this Article 4 with respect to claims for a Loss or potential Loss resulting from the assertion of liability by a third parties party (a “Claim”) shall be subject to the following terms and and-conditions:
(a1) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified The Indemnitee shall give the indemnifying party Indemnitor notice of any such Claim promptly after the Indemnitee learns of the existence of or receives written notice thereof together with a copy of (and in no event more than fifteen (15) days after the Indemnitee receives such claim, process or other legal pleadingwritten notice), and the indemnifying party Indemnitor shall have the right option to undertake the defense thereof with counsel of their own choosing by representatives giving written notice thereof to the Indemnitee within thirty (30) days after receiving such notice. All cost and expense of such defense (including, without limitation, reasonable fees and disbursements of counsel incurred in litigation or otherwise), and any settlement or compromise resulting from the defense of any Claim by the Indemnitor, shall be paid for by the Indemnitor; provided, however, -that the Indemnitor shall not settle or compromise any such Claim unless the Indemnitee is fully released and discharged therefrom as a result thereof. The Indemnitee shall be entitled to participate in the defense of such Claim with counsel of its own choosing and choice, at its own expense; provided, however, that the party Indemnitee shall not, without the written consent of the Indemnitor, compromise or settle any such Claim unless the Indemnitee waives its right to be indemnified may participate in the defense with counsel of its own choice and at its own expenseindemnity therefor hereunder.
(b2) In the event that the indemnifying partyIndemnitor, by the 30th day within a reasonable time after receipt of notice of any such claim Claim, but in no event more than thirty (or30) days after receipt of such notice, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend against such claimor take other appropriate action, the party to be indemnified Indemnitee will (upon further notice to the indemnifying partyIndemnitor) have the right to undertake undertake-the defense, compromise or settlement of such claim on behalf of and for Claim; provided, however, that the account and risk Indemnitee shall not, without the written consent of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlementIndemnitor, compromise or final determination thereofsettle any such Claim unless the Indemnitee waives its right to indemnity therefor hereunder.
(c3) Anything The Indemnitee’s failure to meet any condition or perform any obligation set forth in this Section 6.03 4.3 shall in no way limit or negate any obligations or liabilities of the Indemnitor unless the Indemnitor is actually prejudiced by such failure and, in such event, the Indemnitor’s obligations or liabilities shall be limited only to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect extent of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldprejudice.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 8.2 hereof with respect to claims resulting from the assertion of liability Purchaser Claims or Seller Claims made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the indemnified party to be indemnified shall will give the indemnifying party written notice thereof together with a copy notification of any such claim, process Purchaser Claim or other legal pleadingSeller Claim made by third parties, and the indemnifying party shall have the right right, so long as it acts with reasonable diligence to defend such claim, to undertake the defense thereof by counsel and other representatives chosen by it in each case reasonably acceptable to the indemnified party;
(ii) in the event the indemnifying party assumes the defense of its own choosing a claim, the indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its own expense; provided, however, that unless (A) the indemnified party is required to be indemnified may participate retain separate counsel due to a conflict of interest with the indemnifying party or (B) the indemnifying party fails to act with reasonable diligence in the defense with counsel of its own choice and at its own expense.defending such claim;
(biii) In the event that if the indemnifying party, by the 30th day within twenty (20) Business Days after receipt of notice of any such claim (orPurchaser Claim or Seller Claim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served fails to agree in order to prevent judgment by default in favor of the person asserting such claim), does not elect writing to defend the indemnified party against which such claimPurchaser Claim or Seller Claim has been asserted or thereafter fails to reasonably defend such party, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Purchaser Claim or Seller Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, (subject to the right of the indemnifying party thereafter to assume such defense in accordance with this Section 8.3); provided that the indemnified party shall not, without the written consent of the indemnifying party, settle or compromise any Purchaser Claim or Seller Claim, as the case may be, or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party a release from any and all liability or obligation in respect to such Purchaser Claim or Seller Claim, as the case may be;
(iv) no claim shall be settled without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld or delayed, unless the settlement involves only the payment of monetary consideration by the indemnifying party and includes an unconditional release of the indemnified party; and
(v) whether or not an indemnifying party chooses to defend a claim, all the parties hereto shall cooperate in the defense of or prosecution thereof and shall furnish such claims at any time prior to settlementrecords, compromise or final determination thereofinformation and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
(cb) Anything in this Section 6.03 8.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Purchaser Claim or a Seller Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Purchaser Claim or Seller Claim; provided, however, that if such Purchaser Claim or Seller Claim is settled without the indemnifying party’s consent (which consent shall not be unreasonably withheld, delayed or conditioned), the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such Purchaser Claim or Seller Claim, and (ii) with respect to any Purchaser Claims or Seller Claims relating to Taxes, the indemnifying party shall not settle or compromise any claim Purchaser Claim or Seller Claim or enter into any closing or other final agreement with any taxing authority without the written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldparty.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities ----------------------------- of Seller the FN Shareholders under Section 10.02(a) and Purchaser (those of the "indemnifying party"Buyer, FN and FRN under Section 10.02(b) to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by for indemnification ("Claims") relating to third parties shall be subject to the following terms and ------ conditions:
(a) Within 20 days (or The party against which such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party has been asserted and seeking to be indemnified shall (the "Indemnitee") will give the indemnifying party written from which ---------- indemnity is sought ("Indemnitor") prompt notice thereof together with a copy of any such claimClaim (provided, process or other legal pleadinghowever, the failure ---------- to give such notice shall not relieve Indemnitor from its indemnity obligations hereunder unless and only to the extent that the Indemnitor is prejudiced thereby), and the indemnifying party shall have the right to Indemnitor will undertake the defense thereof by representatives chosen by it and approved by Indemnitee, which approval shall not be unreasonably withheld. Indemnitee shall cooperate in the defense of its own choosing and at its own expense; provided, however, that shall have the party right to be indemnified may participate in the defense of any such claim (including the response to any tax audit), and shall provide Indemnitor and its representatives with counsel of its own choice such access to Indemnitee's records and at its own expenseemployees as may reasonably be required.
(b) In the event that the indemnifying partyIf Indemnitor, by the 30th day within a reasonable time after receipt of notice of any such claim (orClaim, if earlierfails to defend, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will Indemnitee (upon further notice to the indemnifying partyIndemnitor) shall have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expenseIndemnitor, subject to the right of the indemnifying party Indemnitor to assume the defense of such claims Claim, by representatives chosen by it and approved by Indemnitee, in its sole discretion, at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 10.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect Indemnitee other than as a result of money damages or other money payments, Indemnitee shall have the indemnifying party shall not settle any claim without right, if it so elects and at its own cost and expense, to defend or participate in the defense of, and with the consent of Indemnitor to compromise or settle such Claim, (ii) Indemnitor shall not, without the party written consent of Indemnitee, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified Indemnitee, a release from all liability in respect of or related to such claim. If Claim, and (iii) with respect to claims relating to any product, the settlement growth of which occurs both prior and subsequent to the Closing, the Selling Group shall have no obligation of indemnity hereunder unless the Indemnitee proves that any such claim is the result of conduct or activities of the claim involves more than Selling Group in growing such product prior to the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClosing.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser Each party indemnified pursuant to Sections 6.02 or 6.03 hereof (an "indemnified party") agrees to give prompt notice to the party required to indemnify such indemnified party (an "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from of the assertion of liability by third parties shall be subject to any claim, or the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any suit, action evidenced or proceeding, whether brought against such indemnified party or brought by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the such indemnified party to be indemnified shall give against the indemnifying party written notice thereof together with (each a copy "Claim"), in respect of which indemnity may be sought by such claim, process indemnified party under Section 6.02 or 6.03 hereof or in respect of which such indemnified party may seek any other legal pleading, and remedy against the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseunder this Agreement; provided, however, that the omission so to promptly notify the indemnifying party with respect to be a Claim brought against such indemnified party will not relieve the indemnifying party from any liability which it may participate in have to such indemnified party under Section 6.02 or 6.03 hereof unless such failure materially prejudices the indemnifying party with respect to the defense with counsel of its own choice and at its own expense.
(b) In the event that such Claim. If any indemnified party shall seek indemnity under Section 6.02 or 6.03 hereof, the indemnifying party, by in the 30th day after receipt case of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend a Claim brought against such claimindemnified party, the party shall be entitled to be indemnified will (upon further notice participate therein and, to the indemnifying extent that it wishes, to assume and direct the defense and settlement thereof with counsel reasonably satisfactory to such indemnified party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of . After notice from the indemnifying party to an indemnified party of its election to assume and direct the defense and settlement of a Claim brought against such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstandingindemnified party, the indemnifying party shall not settle be liable to such indemnified party (or any claim without of its affiliates) under Section 6.02 or 6.03 hereof for any legal or other expenses subsequently incurred by such indemnified party in connection with the consent defense thereof other than reasonable costs of investigation undertaken at the request of the indemnifying party; except that such indemnified party shall have the right to employ counsel to represent such party if, in the reasonable judgment of such party, it is advisable for such party to be indemnified unless such settlement involves only represented by separate counsel, and in that event the payment of money fees and the claimant provides to the party to be indemnified a release from all liability in respect expenses of such claimseparate counsel shall be paid by such indemnified party. If Notwithstanding the settlement foregoing provisions of the claim involves more than the payment of moneythis Section 6.04, the indemnifying party shall not settle the claim not, without the prior written consent of the an indemnified party to be indemnified, (which consent shall not be unreasonably withheld.
withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such indemnified party for a Claim brought against such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such proceeding (d) The party provided that, whether or not such a release is required to be indemnified and obtained, the indemnifying party will each cooperate shall remain liable to such indemnified party in accordance with all reasonable requests of Section 6.02 or 6.03 hereof, as applicable, in the otherevent that a Claim is subsequently brought against such indemnified party).
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (----------------------------- the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Company hereunder with respect to claims its indemnities pursuant to this Article 5, resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such claim, process or other legal pleading, indemnified party and which may give rise to liability of the indemnifying party shall have pursuant to this Article 5, stating (to the right to undertake extent known or reasonably anticipated) the defense thereof by representatives nature and basis of its own choosing such Claim and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expenseamount thereof.
(b) In the event that the The indemnifying party, by the 30th day after receipt of notice of party shall engage counsel with respect to any such claim Claim, such representation (or, if earlier, by including the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim any Claim) to be undertaken on behalf of and for the account and risk of the indemnified party, and the indemnified party shall have the right to approve such counsel (such approval shall not be unreasonably withheld). No settlement or compromise of any Claim may be made without the consent of the indemnified party (such consent shall not be unreasonably withheld). In the event the indemnifying party elects not to undertake such defense by its own counsel, the indemnifying party shall give prompt written notice of such election to the indemnified party, and the indemnified party will undertake the defense thereof by counsel or other representatives designated by it, at the indemnifying party's expense, subject to the right cost and expense of the indemnifying party to assume the defense (such costs and expenses of such claims at defense to be advanced by the indemnifying party as incurred by the indemnified party). Notwithstanding the foregoing, the indemnified party shall have the right to retain its own counsel and to participate or assume its own defense in any time prior proceeding where (i) the indemnifying party and the indemnified party have mutually agreed to settlementthe retention of counsel by, compromise and the participation of, the indemnified party or final determination thereof(ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.
(c) Anything in this Section 6.03 to In the contrary notwithstandingevent that any Claim shall arise out of a transaction or cover any period or periods wherein the Company on the one hand, and the indemnifying party Investors on the other hand, shall not settle any claim each be liable hereunder for part of the liability or obligation arising therefrom, then the parties shall, each choosing its or his own counsel and bearing its or his own expense, defend such Claim, and no settlement or compromise of such Claim may be made without the Joint consent or approval of the party to be indemnified unless such settlement involves only the payment of money Company and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, Holders (which consent shall not be unreasonably withheld), except where the respective liabilities and obligations of the Company and the Investors are clearly allocable or attributable on the basis of objective facts.
(d) The party Company shall not be required to indemnify the Indemnified Persons with respect to any claim for indemnification pursuant to Section 5.2 unless and until the aggregate amount of all Claims asserted against, resulting to, imposed upon or incurred by the Indemnified Persons exceeds One Hundred Fifty Thousand Dollars ($150,000), and then only to the extent such aggregate amount exceeds One Hundred Fifty Thousand Dollars ($150,000). Claims thereafter may be indemnified and asserted regardless of amount. The Company's maximum liability to the indemnifying party will each cooperate with all reasonable requests of Indemnified Persons for claims for indemnification pursuant to Section 5.2 shall not exceed, in the otheraggregate, Two Million Seven Hundred Thousand Dollars ($2,700,000). The limitations on indemnification provided for in this Section 5.3(d) shall not apply to any Claims asserted against, resulting to, imposed upon or incurred by the Indemnified Persons related to fraud.
Appears in 1 contract
Samples: Common Stock Warrant Purchase Agreement (Nettel Communications Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof each Contributing Company hereunder with respect to claims their respective indemnities pursuant to this SECTION 8, resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such indemnified party and which may give rise to liability of the indemnifying party pursuant to this SECTION 8, stating (to the extent known or reasonably anticipated) the nature and basis of such claimClaim and the amount thereof.
(b) The indemnifying party shall promptly and timely engage counsel for representation with respect to any such Claim, process such representation (including the compromise or other legal pleadingsettlement of any Claim) to be undertaken on behalf of the indemnified party, and the indemnifying indemnified party shall have the right to approve such counsel (such approval not to be unreasonably withheld). In the event the indemnifying party elects not to undertake the defense of such Claim by its own counsel, the indemnifying party shall give prompt written notice of such election to the indemnified party, and the indemnified party will undertake the defense thereof by counsel or other representatives designated by it, at the cost and expense of its own choosing the indemnifying party (such costs and at its own expense; provided, however, that the party expenses of such defense to be advanced by the indemnifying party as incurred by the indemnified may participate in the defense with counsel of its own choice and at its own expenseparty).
(bc) In the event that with respect to any Claim Newco and Newco Sub, on the indemnifying partyone hand, by and the 30th day after receipt of notice of any such claim (orContributing Companies, if earlieron the other hand, by the 10th day preceding the day on which an answer are liable or other pleading must reasonably likely to be served in order to prevent judgment by default in favor held liable for part of the person asserting liability or obligation arising therefrom, then the parties shall, each choosing its or his own counsel and bearing its or his own expense, defend such claim)Claim, does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, and no settlement or compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim Claim may be made without the joint consent or approval of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, parties (which consent consents shall not be unreasonably withheld).
(d) The party to be indemnified and the amount which any indemnifying party will each cooperate with all reasonable requests is or may be required to pay any indemnified party pursuant to this SECTION 8 shall be measured taking into account (i) any income tax savings (and income tax cost attributable to the indemnity payment) actually realized (or occurred) that affect the overall economic impact of the other.losses to the indemnified party, and
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Corporation and Securityholders and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 10.01 and 6.02 hereof 10.02 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expense.the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Securities Purchase Agreement (American Homestar Corp)
Conditions of Indemnification. The respective ----------------------------- obligations and liabilities of Seller Xxxxx and Purchaser Source (herein sometimes called the "indemnifying party") to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 8.02 and 6.02 .03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 30 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 8.04 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment that does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be In connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Samples: Master Reorganization Agreement (National Data Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Eligible Stockholders, Parent and Purchaser Merger Sub (the "indemnifying party") to the other (the "party 25 to be indemnified") under Sections 6.01 8.1 and 6.02 hereof 8.2 with respect to claims resulting from the assertion of liability by third parties ("Third Party Claims") shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Selling Entities and Purchaser (the "indemnifying partyINDEMNIFYING PARTY") to the other (the "party to be indemnifiedINDEMNIFIED PARTY") under for Damages pursuant to Sections 6.01 10.01(a) and 6.02 10.02(a) hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 twenty (20) days (or such earlier time as might be required to avoid prejudicing the indemnifying partyIndemnifying Party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified Indemnified Party shall give the indemnifying party Indemnifying Party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party Indemnifying Party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified Indemnified Party may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying partyIndemnifying Party, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified Indemnified Party will (upon further notice to the indemnifying partyIndemnifying Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party Indemnifying Party and at the indemnifying partyIndemnifying Party's expense, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereofthereof upon reimbursement to the Indemnified Party of all costs and expenses incurred by the Indemnified Party in conjunction with such defense to that date.
(c) Anything in this Section 6.03 to the contrary 10.07 notwithstanding, the indemnifying party Indemnifying Party shall not settle any claim without the consent of the party to be indemnified Indemnified Party unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified Indemnified Party a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party Indemnifying Party shall not settle the claim without the prior consent of the party to be indemnifiedIndemnified Party, which consent shall not be unreasonably withheld.
(d) The party to be indemnified Indemnified Party and the indemnifying party Indemnifying Party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) In the event any member of the Purchaser Group or Seller has a reasonable good faith basis for asserting a Claim for Damages, Purchaser shall give prompt written notice Seller or Seller give prompt written notice to Purchaser, as applicable, briefly setting forth the basis of the Claim and the amount thereof (or, if not then determinable, a reasonable good faith estimate of the amount thereof) in reasonable detail.
(b) The respective obligations and liabilities of Purchaser and Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall will give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim as set forth in subsection (a) above, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(bii) In the event that If the indemnifying party, by the 30th day within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimClaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.;
(ciii) If, in the opinion of the indemnified party’s legal counsel, a conflict of interest with respect to any Claim exists between the indemnified party against which a Claim has been asserted and the indemnifying party, then such indemnified party shall have the right to retain its own counsel with respect to such Claim; provided that the reasonable fees and expenses of such counsel shall be at the expense of the indemnifying party; and
(iv) Anything in this Section 6.03 Article XII to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the indemnifying party’s consent, the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such Claim, and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Stock Purchase Agreement (Triple-S Management Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Shareholder and Purchaser Parent (the "indemnifying partyindemnitor") to the other parties (the "party to be indemnifiedindemnitees") under Sections 6.01 10.01 and 6.02 hereof 10.02 with respect to claims resulting from the assertion of liability by third parties parties, shall be subject to the following terms and conditions:
(ai) Within 20 In the event that a legal proceeding or action is commenced against an indemnitees with respect to any indemnified matter, that indemnitees promptly will provide written notice thereof to the indemnitor (but in no event later than ten (10) days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleadingnotice), or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such any claim, process or other legal pleading, and the indemnifying party shall have the right to . The indemnitor will undertake the defense thereof thereof, as its expense, by representatives counsel of its own choosing and at its own expensereasonably acceptable to the indemnitees; provided, however, provided that the party to be indemnified indemnitees may participate in all aspects of the defense with with, or without, counsel of its own choice and at its own expense.
(b) choice. In the event that the indemnifying partyindemnitees elect to retain additional counsel of their own choice, the fees and expenses of said counsel shall be the exclusive responsibility of the indemnitees unless (i) the indemnitor has agreed to pay such fees and expenses, (ii) the indemnitor has failed to undertake the defense of such action, or (iii) if the nature of any action presents a conflict between the interests of the indemnitor and the indemnitees, or the indemnitees have been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnitor (in which case, if the indemnitees inform the indemnitor in writing that it elects to employ separate counsel at the expense of the indemnitor, the indemnitor shall have no further right to participate in or undertake the defense of such action on behalf of the indemnitees except with respect to payment of full indemnification for any Damages).
(ii) Except for failure by the 30th indemnitees to provide notice as provided for above in subsection (a), in the event that the indemnitor, on or before the thirtieth day after receipt of notice of any such claim (action, or, if applicable and earlier, by on or before the 10th tenth day preceding the day on which an answer answer, appearance or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim)claim or other prejudice to the indemnitees, does not elect fails to defend against undertake the defense of such claimaction, the party to be indemnified indemnitees will (upon further notice to the indemnifying party) have the right to retain counsel of their own choosing and undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party indemnitor without waiving the indemnitee's right to full indemnification from the indemnitor and at the indemnifying partyindemnitor's expense, subject to the right of the indemnifying party indemnitor to assume the defense of such claims at any time prior to settlement, compromise or final determination thereofthereof with counsel reasonably acceptable to the indemnitees.
(ciii) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party indemnitor shall not settle any claim asserted against the indemnitees without the prior consent of the party to be indemnified indemnitees unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified indemnitees with a release from all liability in respect of such claim. If the settlement of the claim any claims involves more than the payment of money, the indemnifying party indemnitor shall not settle the claim without the prior written consent of the party to be indemnifiedindemnitees, which consent shall not be unreasonably withheld. In the event the indemnitor has not undertaken the defense, as described above, with respect to any claim resulting from the assertion of liability by third parties, the indemnitor may settle any claim without prior notice to and consent of the indemnifying party, and indemnitor agrees to promptly, and in any event within thirty days after receipt of written demand, reimburse indemnitees for all Damages, including without limitation all amounts paid or incurred in connection with such settlement, together with attorneys' fees, costs and expenses and other costs incurred in connection with defense of the claim.
(div) The party to be indemnified indemnitees and the indemnifying party indemnitor will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Tca Cable Tv Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Sellers, on the one hand, and Purchaser Buyers, on the other hand (the "indemnifying party") ), to the other (each, collectively, the "party to be indemnified") under Sections 6.01 7.02 and 6.02 7.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 10 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th 20th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise; and
(c) Anything anything in this Section 6.03 7.04 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Asset Purchase Agreement (GHS Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser Buyer (the "indemnifying partyIndemnifying Party") ), from one to the other (the "party to be indemnifiedIndemnified Party") under Sections 6.01 Section 13.01 and 6.02 Section 13.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within twenty (20) days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified Indemnified Party shall give the indemnifying party written Indemnifying Party notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party Indemnifying Party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying partyIndemnifying Party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified Indemnified Party will (upon further notice to the indemnifying partyIndemnifying Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expenseIndemnifying Party, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the Indemnifying Party shall be given at least fifteen (15) days' prior notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 13.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the Indemnifying Party other than as a result of money damages or other money payments, the indemnifying party Indemnifying Party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the Indemnifying Party shall not settle any claim without the prior consent of the party Indemnified Party, settle or compromise any claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment (i) which imposes any restrictions of any nature on the Indemnified Party; or (ii) which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified Indemnified Party a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be indemnified and in connection with any such indemnification, the indemnifying party Indemnified Party will each cooperate with in all reasonable requests of the otherIndemnifying Party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Stockholders under paragraph (a) of Section 9.02 to Parent and Purchaser the Company, on the one hand, and of Parent to the Stockholders under paragraph (b) of Section 9.02, on the other hand (herein sometimes called the "indemnifying partyINDEMNIFYING PARTY") ), to the other (herein sometimes called the "party to be indemnifiedPARTY TO BE INDEMNIFIED") under Sections 6.01 and 6.02 Section 9.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Except with the contrary notwithstanding, the indemnifying party shall not settle any claim without the prior written consent of the indemnified party, no indemnifying party, in the defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the indemnified party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to be such indemnified unless such settlement involves only the payment party of money and the claimant provides to the party to be indemnified a release from all liability with respect to such claim or litigation. In the event that the indemnified party shall in good faith determine that the indemnified party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the indemnifying party in respect of such claim. If claim or any litigation relating thereto, the settlement indemnified party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to such claim at the sole cost of the claim involves more than indemnifying party; provided, however, that if the payment of moneyindemnified party does so take over and assume control, the indemnifying indemnified party shall not settle the such claim or litigation without the prior written consent of the party indemnifying party, such consent not to be indemnified, which consent shall not be unreasonably withheld.
(d) The In connection with any such indemnification, the indemnified party to be indemnified and the indemnifying party will each shall cooperate with in all reasonable requests of the otherindemnifying party. Any notices required to given to or by, and all other actions or decisions required to be taken or made by, the Stockholders as the "indemnifying party" as provided in this Section 9.03, shall be given to or by, or shall be taken or made by, the individual or entity appointed as the Stockholder Agent in accordance with the Representation Agreement and any action so taken shall bind all Stockholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Savvis Communications Corp)
Conditions of Indemnification. The respective obligations and ----------------------------- liabilities of Seller any party obligated to provide indemnification under Sections 9.1 and Purchaser 9.2 (the each, an "indemnifying party") to the other parties entitled to ------------------ indemnification under Sections 9.1 and 9.2 (each, the "party to be indemnified") under Sections 6.01 and 6.02 hereof ----------------------- with respect to claims resulting from the assertion of liability by third parties any person or entity who is not a party to this Agreement shall be subject to the following terms and conditions:
(a) Within 20 30 days (or by the date 10 days prior to such earlier time date as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of written notice of the assertion of any claim or the commencement of any action by any person or entity who is not a party to this Agreement evidenced by service of process or other legal pleading, pleading and a written estimate (if reasonably possible) of the Damages that have been or with reasonable promptness after could be sustained by the assertion in writing of any claim by a third partyparty to be indemnified, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in -------- the defense (subject to the indemnifying party's right to control) with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action as specified in Section 9.4(b) below or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party, such that the same counsel cannot in good faith represent both the indemnifying party and the party to be indemnified (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that If the indemnifying partyparty has not, by the 30th day after receipt of notice of any such claim (or, if earlier, or the date 10 days prior to such earlier date after receipt of such notice by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect elected to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified (and one separate firm of local counsel, as necessary), which firm shall be designated in writing by the party to be indemnified.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party or the party to be indemnified shall not settle any claim without the consent of the other party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, (which consent shall not be unreasonably withheld).
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the otherother with respect to any matter involving indemnification under this Section 9.
(e) A notice of facts that are the basis of an indemnification claim under this Article 9 shall specify in reasonable detail (a) the nature of the claim, (b) if known, the approximate date of the claim and the amount or an estimate of the amount of the claim, and (c) the basis upon which the claim for indemnification is made.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller Shareholders and Purchaser (the "indemnifying party") to the other any person to be indemnified (the "party person to be indemnified") under Sections 6.01 8.1 and 6.02 8.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party person to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party person to be indemnified may participate in the defense with counsel of its own choice and at its own expenseexpense and, provided further, that the failure of the person to be indemnified to give timely notice shall not affect the right to indemnification hereunder except to the extent (and then only to the extent) the indemnifying party proves actual damages caused by such failure.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party person to be indemnified will (upon further notice to the indemnifying party) have the right right, but not the obligation, to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 8.3 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party person to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party person to be indemnified, which consent shall not be unreasonably withheld.
(d) The party person to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Buyer with respect to claims its indemnities pursuant to this Article XIII, resulting from the any claim or other assertion of liability by third parties (hereinafter called collectively, “Third Party Claims”), shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of Seller must give Buyer written notice of commencement any such Claim within ninety (90) days after Seller receives notice thereof, but failure to give notice in such period shall only relieve Buyer of any action evidenced by service of process or other legal pleading, or with reasonable promptness after its indemnity obligations if and to the assertion in writing of any claim by a third party, extent the party to be indemnified shall give delay materially prejudices the indemnifying party written notice thereof together with a copy defense of such claim, process or other legal pleading, and the indemnifying party Claim.
(b) Buyer shall have the right to undertake the defense thereof promptly undertake, without conditions or reservation of rights, by counsel or other representatives of its own choosing and at its own expense; providedreasonably acceptable to Seller, however, that the party to be indemnified may participate in the defense with counsel of its own choice such Claim at Buyer’s cost and at its own expenserisk.
(bc) In the event that the indemnifying partyBuyer shall elect not to undertake such defense, by the 30th day or within a reasonable time after receipt of notice of any such claim (orClaim from Seller shall fail to defend, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will Seller (upon further written notice to the indemnifying partyBuyer) shall have the right on behalf of and for the account and risk of Buyer to undertake the defense, compromise or settlement of such claim on behalf Claim by counsel or other representatives of Seller’s own choosing. In such event, Buyer shall pay to Seller, in addition to any other sums required to be paid hereunder, the costs and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of expenses incurred by Seller in connection with such claims at any time prior to settlementdefense, compromise or final determination thereofsettlement as and when such costs and expenses are so incurred.
(cd) Anything in this Section 6.03 13.03 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect Seller, Seller shall have the indemnifying party shall not settle any claim without right, at its own cost and expense, to participate in the consent defense, compromise or settlement of the party Claim, (ii) Buyer shall not, without Seller’s written consent (such consent not to be indemnified unless such settlement involves only unreasonably withheld, conditioned or delayed), settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the payment of money and giving by the claimant provides or the plaintiff to the party to be indemnified Seller a release from all liability in respect of such claim. If Claim in a form reasonably satisfactory to Seller, (iii) in the settlement event that Buyer undertakes defense of any Claim, Seller, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with Buyer and its counsel or other representatives concerning such Claim, and Bxxxx and Seller and their respective counsel or other representatives shall reasonably cooperate with respect to such Claim, and (iv) in the event that Buyer undertakes defense of any Claim, Buyer shall have an obligation to keep Seller informed of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent status of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified defense of such Claim and the indemnifying party will each cooperate furnish Seller with all reasonable requests documents, instruments and information that Seller shall reasonably request in connection therewith. Notwithstanding the foregoing, in the event Buyer undertakes the defense of any Claim, Seller shall have the otherright to employ its own counsel at Buyer’s expense if Seller shall have reasonably concluded and specifically notified Buyer that there may be one or more specific defenses available to it which are different from or additional to those available to Buyer or there otherwise exists a conflict of interest between Seller and Buyer.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Norfolk Southern Corp)
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof this Agreement with respect to indemnifiable claims resulting from the assertion of liability made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives chosen by it;
(ii) If the indemnifying party undertakes the defense of any such claim, the indemnified party shall, to the best of its own choosing and at its own expense; providedability, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that assist the indemnifying party, at the expense of the indemnifying party, in the defense of such claim, and shall promptly send to the indemnifying party, at the expense of the indemnifying party, copies of any documents received by the 30th day indemnified party which relate to such claim;
(iii) If the indemnifying party, within a reasonable time after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimclaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.; and
(civ) Anything in this Section 6.03 Article IX to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such claim; and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as a term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in with respect of to such claim. .
(b) If the settlement Purchaser Group has a reasonable good faith basis for asserting a claim for Damages, it shall give prompt written notice to Seller, setting forth in reasonable detail the basis of the claim involves more than and the payment of moneyamount thereof (or, if not then determinable by the indemnifying party shall not settle the claim without the prior consent Purchaser Group, a reasonable good faith estimate of the party to be indemnified, which consent shall not be unreasonably withheldamount thereof).
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hayes Lemmerz International Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Antrim and Purchaser Buyer and Swift (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 8.1, 8.2, 8.3 and 6.02 8.4 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the party to be indemnified has not received written notice from the indemnifying party, which notice must be received by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect that the indemnifying party has elected to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 8.5 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:of
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing writing, formal or informal, of any claim claim, audit or inquiry by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to respond to such action, claim, audit or inquiry and to undertake the defense thereof by representatives with counsel reasonably satisfactory to the party to be indemnified; provided that (i) the indemnifying party may only assume control of its own choosing and at its own expense; provided, however, that such defense if (A) it acknowledges in writing to the party to be indemnified that any damages, fines, costs or other liabilities that may participate be assessed against the party to be indemnified in connection with such action constitute Damages for which the party to be indemnified shall be indemnified pursuant to this Article VI, and (B) the ad damnum is less than or equal to the amount of damages for which the indemnifying party is liable under this Article VI, and (ii) the indemnifying party may not assume control of the defense of any such action involving criminal liability or in which equitable relief is sought against the party to be indemnified. If the indemnifying party does not, or is not permitted under the terms hereof or as a result of a conflict to, so assume control of the defense of such action, the party to be indemnified shall control such defense, provided that, in such case, the indemnifying party shall be required to reimburse the party to be indemnified for reasonable attorneys’ fees incurred in connection with counsel of its own choice and at its own expense.such defense;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim claim, audit or inquiry (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to respond to such action, claim, audit or inquiry and to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party, provided that the indemnifying party shall be given at least 15 days’ prior written notice to the effectiveness of any such proposed settlement or compromise and at provided that such settlement or compromise shall not be effected without the consent of the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise which consent shall not be unreasonably withheld or final determination thereof.delayed;
(c) Anything anything in this Section 6.03 6.05 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment that does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The in connection with any such indemnification, the indemnified party to be indemnified and the indemnifying party will each shall cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) Except as provided in SECTION 9.8, if any Newco Indemnified Person shall seek indemnification pursuant to SECTION 9.2 or SECTION 9.5, or if any Parent Indemnified Person, shall seek indemnification pursuant to SECTION 9.3 or SECTION 9.6, the party seeking indemnification (the "indemnifying partyINDEMNIFIED PARTY") shall give written notice to the other party from whom such indemnification is sought (the "party INDEMNIFYING PARTY") promptly (and in any event within 60 days) after the Indemnified Party (or, if the Indemnified Party is a corporation, any officer or director of the Indemnified Party) becomes aware that a claim for indemnification (an "INDEMNIFIED CLAIM") may be made, specifying in reasonable detail the factual basis of the Indemnified Claim, stating the amount of the Damages, if known, the method of computation thereof, containing a reference to the provision of this Contribution Agreement in respect of which such Indemnified Claim arises and demanding indemnification therefor. The failure of an Indemnified Party to provide notice in accordance with this SECTION 9.7, or any delay in providing such notice, shall not constitute a waiver of that party's claims to indemnification pursuant to this SECTION 9, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be indemnified"paid by the Indemnifying Party to be greater than they otherwise would have been (in which case, only the excess amount of such claim resulting from such delay shall be waived) under Sections 6.01 and 6.02 hereof with respect or otherwise results in prejudice to claims resulting the Indemnifying Party or (ii) if such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period, if any, set forth in SECTION 9.
1. If the Indemnified Claim arises from the assertion of liability by third parties shall be subject to any claim, or the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim Proceeding brought by a third partyPerson that is not a party hereto (a "THIRD PARTY CLAIM"), any such notice to the party to Indemnifying Party shall be indemnified shall give the indemnifying party written notice thereof together with accompanied by a copy of any Documents theretofore served on or delivered to the Indemnified Party in connection with such claimThird Party Claim (a "THIRD PARTY CLAIM NOTICE").
(b) The Indemnifying Party shall have 20 days from delivery of the Third Party Claim Notice to notify the Indemnified Party whether or not the Indemnifying Party elects to defend the Indemnified Party against such Third Party Claim. In the event that the Indemnifying Party notifies the Indemnified Party that it elects to defend the Indemnified Party against such Third Party Claim and acknowledges its obligations to indemnify the Indemnified Party in full hereunder in connection with such Third Party Claim, process or other legal pleading, and the indemnifying party Indemnifying Party shall have the right to undertake defend the Indemnified Party by appropriate proceedings and shall control such defense at the Indemnifying Party's expense unless (i) the claim seeks only an injunction or other equitable relief, (ii) the Indemnified Party shall have been advised by counsel that there are one or more legal or equitable defenses available to it which are different from or in addition to those available to the Indemnifying Party and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests could be in conflict with those of the Indemnifying Party, (iii) such Proceeding could have a material effect on any material matter beyond the scope of the indemnification obligation of the Indemnifying Party or (iv) the Indemnifying Party shall not have assumed the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, third party claim within the party to be indemnified will (upon further foregoing 20 day period. After notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk Indemnified Party of the indemnifying party and at the indemnifying partyIndemnifying Party's expense, subject to the right of the indemnifying party election to assume the defense of such claims Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof unless the Indemnifying Party fails to diligently pursue the defense of such Third Party Claim; provided that the Indemnified Party shall have the right to employ counsel to represent it. If the Indemnifying Party elects not to defend the Indemnified Party against such Third Party Claim, then the Indemnified Party may (but is not obligated to) defend such Third Party Claim by appropriate Proceedings and may (but is not obligated to) control such defense, at any time prior to settlement, compromise or final determination thereofthe expense of the Indemnifying Party.
(c) Anything The parties shall render to each other such assistance as may reasonably be requested in this Section 6.03 order to insure the proper and adequate defense of any such Third Party Claim, including making employees available (with reasonable prior notice) during normal business hours to provide additional information and explanation of any relevant materials or to testify at any Proceedings relating to such Third Party Claim and giving the other party reasonable access to any books, records and other documents and information relating to the contrary notwithstanding, defense of such Third Party Claim. The Indemnifying Party shall reimburse the indemnifying party shall out-of-pocket costs and expenses reasonably incurred by the Indemnified Party in providing such assistance.
(d) The Indemnifying Party will not settle consent to the entry of any claim Order or enter into any settlement with respect to a Third Party Claim without the prior written consent of the party to be indemnified Indemnified Party, unless such settlement the Order (x) involves only the payment of money damages and (y) includes as an unconditional term thereof the giving by the claimant provides or plaintiff to the party to be indemnified a Indemnified Party of an unconditional release from all liability Liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldThird Party Claim.
(de) The party Any obligation by an Indemnifying Party to indemnify an Indemnified Party shall be satisfied in cash. Parent and HNS hereby waive any right to seek indemnification or contribution from any Transferred Subsidiary for Damages as a result of any breach by HNS or any Transferred Subsidiary of any representation, warranty or any covenant or other agreement to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the otherperformed prior to Closing contained in this Contribution Agreement or any other Transaction Document.
Appears in 1 contract
Samples: Contribution and Membership Interest Purchase Agreement (Skyterra Communications Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Seller, on the one hand, and Purchaser Buyer, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 6.02 and 6.02 6.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice to the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 6.04 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Indemnifying Group hereunder with respect to claims their joint and several indemnities pursuant to this Article 2, resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(a) Within 20 days Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated pursuant to Article 6 hereof, the obligations of the Indemnifying Group under this Article 2 shall terminate and be extinguished forever on the second anniversary of the Closing Date of the Merger (or such earlier time as might be required the "Indemnity Notice Date"), unless and to avoid prejudicing the indemnifying party's position including the entry extent written notice of a default judgmentClaim that arose on or prior to such date has been asserted on or prior to such date, which notice shall describe such Claim with reasonable specificity. If such timely written notice of a Claim has been made, the indemnity obligations of the Indemnifying Group shall continue beyond the Indemnity Notice Date, but only with respect to such Claim and only until the earlier of (i) the date such Claim is satisfied or otherwise finally resolved, (ii) if final legal action is taken with respect to such Claim during the Indemnity Period, the date on which such Claim is satisfied or otherwise finally resolved, or (iii) with respect to a Claim for which no legal action has been taken during the Indemnity Period, twelve (12) months after the date on which the last settlement or other substantive discussions have taken place with respect to such Claim, but in no event more than thirty-six (36) months after the end of the Indemnity Period.
(b) The cumulative aggregate obligation of the Indemnifying Group under this Article 2 shall not exceed Six Million Dollars ($6,000,000.00) (the "Indemnification Cap").
(c) Any of the PREIT Indemnified Persons proposing to assert the right to be indemnified under this Agreement shall, promptly after receipt of notice of commencement of any action evidenced by service against such PREIT Indemnified Persons in respect of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by which a third party, the party Claim is to be indemnified shall give made under this Agreement against the indemnifying party written notice thereof together with Indemnifying Group, notify the Indemnifying Group of the commencement of such action, enclosing a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseall papers served; provided, however, that the party failure so to notify an Indemnifying Group prior to the end of the Indemnity Period shall not relieve the Indemnifying Group from any liability which it or he may have under this Agreement (except to the extent such failure to notify materially prejudices the Indemnifying Group's ability to defend such Claim) or from any liability which the Indemnifying Group may otherwise have. If any such action is brought against any of the PREIT Indemnified Persons and such PREIT Indemnified Persons notify the Indemnifying Group of its commencement in accordance with and subject to the terms of Section 2.2(a) hereof, the Indemnifying Group shall be indemnified may entitled to participate in and, to the extent that the members of the Indemnifying Group elect by delivering written notice to such PREIT Indemnified Persons promptly after receiving notice of the commencement of the action from the PREIT Indemnified Persons, to assume the defense with counsel of its own choice the action and at its own expense.
(b) In after notice from the event that Indemnifying Group to the indemnifying partyPREIT Indemnified Persons of their election to assume the defense, by the 30th day after receipt of notice of Indemnifying Group will not be liable to the PREIT Indemnified Persons for any such claim (or, if earlier, by the 10th day preceding the day on which an answer legal or other pleading must be served in order to prevent judgment by default in favor of expenses except as provided below. If the person asserting such claim), does not elect to defend against such claimIndemnifying Group assumes the defense, the party to be indemnified will (upon further notice to the indemnifying party) Indemnifying Group shall have the right to undertake settle such action without the defenseconsent of the PREIT Indemnified Persons; provided, compromise however, that the Indemnifying Group shall be required to obtain such consent if the settlement includes (i) any admission of wrongdoing on the part of the PREIT Indemnified Persons, (ii) any decree or restriction on the PREIT Indemnified Persons, or (iii) an obligation of the PREIT Indemnified Persons to pay any money that is not otherwise indemnified by the Indemnifying Group; provided further, however, that no member of the Indemnifying Group, in the defense of any such action shall, except with the consent of the PREIT Indemnified Persons, consent to entry of any judgment or enter into any settlement that (i) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such PREIT Indemnified Persons of a release from all liability with respect to such action, or (ii) contains obligations other than with respect to the payment of money. The PREIT Indemnified Persons shall have the right to employ their own counsel in any such action, but the fees, expenses and other charges of such claim counsel shall be at the expense of such PREIT Indemnified Persons unless (i) the employment of counsel by the PREIT Indemnified Persons has been authorized in writing by the Indemnifying Group, (ii) the PREIT Indemnified Persons have reasonably concluded (based on written advice of counsel to the PREIT Indemnified Persons) that there may be legal defenses available to them that are different from or in addition to and inconsistent with those available to the Indemnifying Group, (iii) a conflict or potential conflict exists (based on written advice of counsel to the PREIT Indemnified Persons) between the PREIT Indemnified Persons and the Indemnifying Group (in which case the Indemnifying Group will not have the right to direct the defense of such action on behalf of and for the account and risk of PREIT Indemnified Persons) or (iv) the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party Indemnifying Group have not in fact employed counsel to assume the defense of such claims action within a reasonable time (not to exceed 10 days) after receiving notice of the commencement of the action from the PREIT Indemnified Persons, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Group and shall promptly be paid by each member of the Indemnifying Group as they become due and payable in advance of the final disposition of the claim, action, suit, proceeding or investigation to the fullest extent and in the manner permitted by law; provided, however, that in no event shall any contingent fee arrangement be considered reasonable. Notwithstanding the foregoing, the Indemnifying Group shall not be obligated to advance any expenses or costs prior to receipt of an undertaking by or on behalf of the PREIT Indemnified Persons to repay any expenses advanced if it shall ultimately be determined that the PREIT Indemnified Persons are not entitled to be indemnified against such expense pursuant to the last sentence of this Section 2.2(c). It is understood that the Indemnifying Group shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time prior for all such PREIT Indemnified Persons unless (a) the employment of more than one counsel has been authorized in writing by the Indemnifying Group, (b) any of the PREIT Indemnified Persons have reasonably concluded (based on written advice of counsel to settlementthe PREIT Indemnified Persons) that there may be legal defenses available to them that are different from or in addition to and inconsistent with those available to other PREIT Indemnified Persons, compromise or final determination thereof.
(c) Anything a conflict or potential conflict exists (based on written advice of counsel to the PREIT Indemnified Persons) between any of the PREIT Indemnified Persons and the other PREIT Indemnified Persons, in this Section 6.03 each case of which the Indemnifying Group shall be obligated to pay the reasonable fees and expenses of such additional counsel or counsels on the same basis as provided in the immediately preceding sentence. Notwithstanding anything to the contrary notwithstandingset forth in this Agreement, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent Indemnifying Group (i) shall not be unreasonably withheldliable for any settlement effected without their prior written consent and (ii) shall not have any obligation hereunder to any PREIT Indemnified Persons to the extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable law. In the event of a final and non-appealable determination by a court that any payment of expenses is prohibited by applicable law, the PREIT Indemnified Persons shall promptly refund to the Indemnifying Group the amount of all such expenses theretofore advanced pursuant hereto.
(d) The party To the extent an indemnification payment pursuant to this Article 2 shall be reduced by withholding Taxes or causes any Taxes to be indemnified payable by a PREIT Indemnified Person with respect to such payment without such PREIT Indemnified Person having received a corresponding reduction in Taxes with respect to the Claim for which the indemnification payment was made, the Indemnifying Group shall increase the gross amount of such payment by a sufficient amount so that the net balance held by the PREIT Indemnified Person, after imposition of such withholding Taxes or Taxes payable with respect to such payment, equals the amount of the indemnity payment to which the PREIT Indemnified Person is entitled pursuant to this Article 2.
(e) No member of the Indemnifying Group shall be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the indemnifying party will each cooperate extent that the PREIT Indemnified Person has otherwise actually and properly received payment of such amounts under any insurance policy.
(f) The parties hereto agree that to the extent the Indemnifying Group collectively shall not have sufficient funds available when required to make an indemnification payment pursuant to this Article 2, other than through a sale of PREIT or PREIT Partnership securities that would otherwise violate the terms of the shareholder agreement to be entered into by and among Mark E. Pasquerilla, Crown Partnership, CIT, CAIC, CDHC, PREIT and PREXX Xxxxxxxxxxx xx xonnection with the Merger (the "Shareholder Agreement"), the Indemnifying Group shall be permitted to sell the minimum number of PREIT or PREIT Partnership securities necessary, when taken together with all reasonable requests other funds available to the members of the otherIndemnifying Group, to make such indemnification payment.
Appears in 1 contract
Samples: Indemnification Agreement (Pennsylvania Real Estate Investment Trust)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Buyer with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall will give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b) In the event that if the indemnifying party, by the 30th day within a reasonable time after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimclaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.; and
(c) Anything in this Section 6.03 Article 6 to the contrary notwithstanding;
(i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnifying indemnified party shall not have the right, at its own cost and expense, to defend, compromise or settle any such claim; provided, however, that if such claim is settled without the indemnifying party's consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, (which consent shall not be unreasonably withheld.
(d) The ), the indemnified party shall be deemed to be indemnified and have waived all rights hereunder against the indemnifying party will each cooperate with all reasonable requests of the other.for
Appears in 1 contract
Samples: Asset Purchase Agreement (American Eagle Group Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to parties hereunder regarding claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:.
(a) Within 20 days (or such earlier time as might be required The indemnified party hereby agrees to avoid prejudicing promptly notify the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion party in writing of any claim claims asserted against, imposed upon or incurred by a third party, the indemnified party to be indemnified shall give and the indemnifying party written notice hereby agrees to undertake the defense thereof together with a copy of such claim, process or other legal pleading, and by representatives chosen by the indemnifying party. The indemnifying party shall have the right to undertake control and handle the defense thereof by representatives conduct of its own choosing and at its own expense; provided, however, that any litigation. The indeminfied party hereby agrees to cooperate with the indemnifying party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.any litigation. The indemnifying party hereby agrees to keep the indemnified party informed as to the progress of any such claim or proceeding; and
(b) In the event that the indemnifying party, within fifteen (I 5) days after notification by the 30th day after receipt of notice indemnified party of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, fails to defend, control or handle such matter, the indemnified party to be indemnified will (shall have the right, upon further notice written notification to the indemnifying party) have the right , to undertake the defensedefend, compromise or settlement of such claim settle the same on behalf of and for the account and at the risk of the indemnifying party and at party. In such event, the indemnifying party hereby agrees to advance and pay all costs and reasonable attorneys fees of such indemnification and give full cooperation to the indemnified party's expense, subject subject, however, to the right of the indemnifying party to assume the such defense of such claims at any time prior to final settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser PQS, Probex or Parent, as the case may be (the "indemnifying partyParty") to the other Persons (the "party Party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties any claim or demand for indemnification shall be subject to the following terms and conditions:
13.3.1 The Party to be indemnified shall promptly give notice to the indemnifying Party of any claim, whether between the Parties or brought by a third party, specifying both the basis for and the amount of such claim, to the extent specified or otherwise known. If the claim or demand for indemnification relates to a claim, action, suit, or proceeding asserted or filed by a Third Party against the Party to be indemnified (aa "Third-Party Claim"), then such notice shall be given by the Party to be indemnified within twenty (20) Within 20 days of receipt thereof (or such earlier time as might be required to avoid prejudicing the indemnifying partyParty's position including position). The failure of the entry Party to be indemnified to give such notice shall not relieve the indemnifying Party of its obligations hereunder, except to the extent the indemnifying Party is actually prejudiced thereby.
13.3.2 Following receipt of notice from the Party to be indemnified of a default judgmentclaim or demand for indemnification, the indemnifying Party shall have twenty (20) after days to make such investigation of the claim or demand as the indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Party to be indemnified agrees to make available to the indemnifying Party (or its authorized representatives) the information relied upon by the Party to be indemnified to substantiate the claim or demand. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such twenty (20) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim or demand, then the indemnifying Party shall immediately pay to the Party to be indemnified the full amount of the claim or demand to the extent that such Party to be indemnified is entitled to indemnification pursuant to this Section 13.3. If the Party to be indemnified and the indemnifying Party do not agree within such period (or any mutually agreed upon extension thereof), then the Party to be indemnified may pursue or exercise any remedies or rights available to it.
13.3.3 After receipt of notice of commencement of any action Third-Party Claim evidenced by service of process or other legal pleading, or with reasonable promptness after the any other assertion in writing of any claim by a third partyThird-Party Claim, the party Party to be indemnified shall give the indemnifying party Party written notice thereof together with a copy of such claim, process process, or other legal pleading, and pleading within the period set forth in the second sentence of Section 13.3.1. The failure of a Party to be indemnified to give the indemnifying party Party such notice shall not relieve the indemnifying Party of its obligations under Section 13.3 except to the extent the indemnifying Party is actually prejudiced thereby. The indemnifying Party shall have the right to undertake the defense thereof defense, compromise, or settlement of the Third-Party Claim, by representatives of its own choosing and at its own expense; providedexpense so long as the indemnifying Party agrees to assume and conduct, howeverand diligently conducts, that such defense (or, if applicable, compromise or settlement). In such event the party Party to be indemnified may participate in the defense defense, compromise, or settlement with counsel of its own choice and at its own expense.
(b) In the event that 13.3.4 If the indemnifying partyParty, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimplaintiff), does not elect to defend against such claimThird-Party Claim, then the party Party to be indemnified will shall have the right (upon further notice to the indemnifying partyParty) have the right to retain counsel and undertake the defense, compromise compromise, or settlement of such claim Third-Party Claim on behalf of of, and for the account and risk of of, the indemnifying party Party and at the indemnifying partyParty's expense, subject to the right of the indemnifying party Party to assume participate, with its own counsel and at its own expense, in the defense defense, settlement or compromise. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything the period set forth in this Section 6.03 13.3.4 (or any mutually agreed upon extension thereof) to the contrary notwithstandingvalidity and amount of such Third-Party Claim, then the indemnifying Party shall immediately pay to the Party to be indemnified the amount so agreed.
13.3.5 If there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying Party and the Party to be indemnified in defending, compromising, or settling a Third-Party Claim, the indemnifying party Party shall be responsible for paying for separate counsel for the Party to be indemnified. In such event, however, if there is more than one Party to be indemnified, the indemnifying Party shall not settle be responsible for paying for more than one separate counsel (which may be a firm of attorneys) to represent the Parties to be indemnified, regardless of the number of Parties to be indemnified.
13.3.6 The indemnifying Party may compromise, settle, or resolve any claim Third-Party Claim without the consent of the party Party to be indemnified unless if such settlement compromise, settlement, or resolution involves only the payment of money by the indemnifying Party (whether on its own behalf or on behalf of the Party to be indemnified) and the claimant provides to the party Party to be indemnified a release from all liability Liability in respect of such claim. If the settlement of the claim involves more than the payment of moneyOtherwise, the indemnifying party shall Party may not settle compromise, settle, or resolve the claim without the prior written consent of the party Party to be indemnified, which consent shall may not be unreasonably withheld.
(d) 13.3.7 The party Party to be indemnified and the indemnifying party will each Party must cooperate with all reasonable requests of the other in the defense of any Third-Party Claim.
13.3.8 Notwithstanding anything to the contrary in this Section 13.3, with respect to an obligation of PQS to indemnify Probex pursuant to Section 13.2.1 above with respect to a PQS Environmental Claim that requires any Remediation, PQS may elect to implement and complete such Remediation. If PQS elects to conduct the Remediation:
(i) PQS, in good faith, will coordinate the schedule of the Remediation with Probex so that disruptions of Probex's operations will be minimized;
(ii) PQS will obtain the prior written approval of Probex, which approval will not be unreasonably withheld, for any consultant or contractor retained by PQS to investigate, design or implement the Remediation;
(iii) PQS will conduct the Remediation in compliance with all applicable federal, state and local laws and regulations and as directed by the appropriate Governmental Body; and
(iv) PQS will not agree to or select any Remediation that imposes any material obligation on Probex, including, without limitation, the obligation to sign manifests or obtain permits, without the prior written consent of the Probex, which consent shall not be reasonably withheld.
(v) During the period in which PQS is conducting a Remediation pursuant to this Section 13.3.8, Probex shall provide PQS and its consultants and contractors reasonable access to the affected property for the purpose of conducting activities related to the Remediation, including where necessary the use of heavy equipment. Any such access shall be subject to reasonable restrictions imposed by Probex, including, without limitation, restrictions related to worker safety. PQS shall expeditiously remove from the property all drill cuttings, soil, debris or liquids generated from or in connection with the Remediation and shall restore the property and any existing structures or equipment removed or damaged in the course of the Remediation to a condition substantially the same as the condition that existed immediately prior to the Remediation. PQS or their consultants and contractors shall provide Probex at least five (5) business days' notice of the activities to be conducted on the property, which notice may be in the form of a schedule of activities.
(vi) PQS and Probex agree that any Remediation shall meet all requirements of the Governmental Body or Bodies directing the Remediation and shall not materially impede or increase the cost of Probex's business operations on the affected property. Probex acknowledges that the Remediation may be a "risk-based" Remediation pursuant to, and consistent with applicable federal, state and local laws and regulations, which may require the establishment of certain restrictions or conditions affecting the property on which the Remediation is being conducted. Probex agrees not to object to any such --- "risk-based" Remediation unless Probex's agreement will, in the good faith judgment of Probex, expose Probex to liability to third parties.
(vii) PQS shall not take any action or make any communication which has a material effect on the resolution or outcome of any Environmental Claim which could lead to the filing of an Environmental Claim against Probex, without providing at least five (5) business days advance notice (unless otherwise required by law) to Probex. Any material breach of this obligation shall relieve Probex or Parent of Liabilities under this Agreement with respect to the applicable Environmental Claim to the extent Probex or Parent has been prejudiced by the lack of timely and adequate notice. This notification requirement shall not apply to communications which are part of or relate to a judicial or administrative proceeding in which the Parties are litigating claims against each other.
Appears in 1 contract
Samples: Services Agreement (Probex Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Investor hereunder with respect to claims their respective indemnities pursuant to this SECTION 6, resulting from the assertion of liability by third parties any Claim shall be subject to the following additional terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such indemnified party and which may give rise to liability of the indemnifying party pursuant to this SECTION 6, stating (to the extent known or reasonably anticipated) the nature and basis of such claimClaim and the amount thereof. The omission of the indemnified party so to notify the indemnifying party of any Claim shall not relieve the indemnifying party from any liability it may have hereunder except to the extent that (i) the liability was caused or increased by such omission, process or other legal pleading(ii) the ability of the indemnifying party to reduce or defend against the liability was materially adversely affected by the omission.
(b) The indemnifying party may engage counsel with respect to any such Claim, the representation (including the compromise or settlement of any Claim) to be undertaken on behalf of the indemnified party, and the indemnifying indemnified party shall have right to approve counsel (which approval shall not be unreasonably withheld). The indemnified party shall have the prior right to approve any compromise or settlement of any Claim by counsel engaged by the indemnifying party (which approval shall not be unreasonably withheld), unless such compromise or settlement contains a full release of the indemnified party of any and all liability and does not impose any restrictions on the indemnified party or its business or affairs. In the event the indemnifying party elects not to undertake the defense of the Claim by its own counsel, or in the event that the indemnified party reasonably believes that representation by counsel designated by the indemnifying party would be inappropriate due to actual or potential conflicts of interest, the indemnified party will undertake the defense thereof by one counsel or other representatives designated by it, at the cost and expense of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of . In any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstandingevent, the indemnifying party shall not settle any claim without the consent parties will advance all expenses of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldparties as incurred.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Stockholder hereunder with respect to claims their respective indemnification obligations pursuant to this Section 8 resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim that is asserted against, resulting to, imposed upon or incurred by such claim, process or other legal pleading, indemnified party and that may give rise to liability of the indemnifying party shall pursuant to this Section 8 stating (to the extent known or reasonably anticipated) the nature and basis of such Claim and the amount thereof.
(ii) Any indemnifying party will have the right to undertake defend the defense thereof by representatives indemnified party against the Claim with counsel of its own choosing and at its own expense; providedchoice reasonably satisfactory to the indemnified party so long as (A) the indemnifying party notifies the indemnified party in writing, howeverwithin fourteen (14) days after the indemnified party has given notice of the Claim, that the indemnifying party will indemnify the indemnified party from and against the entirety of any Claims the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Claim, (B) the indemnifying party provides the indemnified party with evidence reasonably acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the Claim and fulfill its indemnification obligations hereunder, (C) the Claim involves only money damages and does not seek an injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Claim is not, in the good faith judgment of the indemnified party, likely to establish a precedential custom or practice adverse to the continuing business interests of the indemnified party, (E) the indemnifying party conducts the defense of the Claim actively and diligently and (F) if the indemnifying party is also a party to such Claim, the indemnified party reasonably determines that such joint representation would not be inappropriate.
(iii) So long as the indemnifying party is conducting the defense of the Claim in accordance with Section 8(c)(ii), (A) the indemnified party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Claim, (B) the indemnified party will not consent to the entry of any judgment or enter into any settlement with counsel respect to the Claim without the prior written consent of its own choice the indemnifying party (not to be withheld unreasonably), and at its own expense(C) the indemnifying party will not consent to the entry of any judgment or enter into any settlement with respect to the Claim without the prior written consent of the indemnified party (not to be withheld unreasonably).
(biv) In the event any of the conditions in Section 8(c)(ii) or (iii) is or becomes unsatisfied, however, (A) the indemnified party may defend against the Claim in any manner it may deem appropriate without the consent of the indemnifying party, but the indemnified party shall not consent to the entry of any judgment or enter into any settlement with respect to the Claim without the consent of the indemnifying party (which consent shall not be withheld without compelling reason), (B) the indemnifying party will reimburse the indemnified party promptly and periodically for the costs of defending against the Claim, and (C) the indemnifying party will remain responsible for any Claims the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Claim to the fullest extent provided in this Section 8.
(v) In the event that any Claim shall arise out of a transaction or cover any period or periods wherein the indemnifying partyCompany, by on the 30th day after receipt of notice of any such claim (orone hand, if earlierand Stockholder, by on the 10th day preceding the day on which an answer or other pleading must hand, shall each be served in order to prevent judgment by default in favor liable hereunder for part of the person asserting liability or obligation arising therefrom, then Stockholder and the Company shall, each choosing its own counsel and bearing its own expense, defend such claim)Claim, does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, and no settlement or compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim Claim may be made without the joint consent or approval of the party to be indemnified unless such settlement involves only the payment of money Stockholder and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, Company (which consent shall not be unreasonably withheld.
(d) The party to be indemnified ), except where the respective liabilities and obligations of Stockholder and the indemnifying party will each cooperate with all reasonable requests Company are clearly allocable or attributable on the basis of the otherobjective facts.
Appears in 1 contract
Samples: Option to Issue Shares Agreement (Regal Entertainment Group)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser Sellers (herein sometimes called the "indemnifying party") ), to the other Buyer or BPC (herein sometimes collectively called the "party to be indemnified") under Sections 6.01 8.2, 8.3, 8.4 and 6.02 8.11 hereof with respect to claims resulting from the assertion of liability Liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of (i) commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after (ii) the assertion in writing of any claim by a third party, or (iii) the party to be indemnified obtains actual knowledge that an event giving rise to an indemnity obligation has arisen, the party to be indemnified shall give the indemnifying party written notice thereof specifying the factual basis of the claim in reasonable detail to the extent then known to the party to be indemnified, together with a copy of such claim, process or other legal pleading, if applicable, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expensewho shall be reasonably satisfactory to the indemnified party; provided, however, provided that the failure to provide such notice will not relieve the indemnifying party of any Liability under this Article 8 except to be indemnified may participate in the extent that the indemnifying party's defense with counsel of its own choice and at its own expense.such action is materially prejudiced by such failure;
(b) In in the case of a third party claim, in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), ) does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defensedefense through legal counsel reasonably satisfactory to the indemnifying party, and, with consent of the indemnifying party (which shall not be unreasonably withheld or delayed), compromise or settlement of settle such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party party, with the consent of the indemnified party, to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything anything in this Section 6.03 8.5 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim for injunction, specific performance or similar equitable remedy other than money damages which may materially and adversely affect the business or operations of indemnified party, the indemnified party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnified party shall not, without the prior written consent of the indemnifying party, settle or compromise any claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.;
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party; and
(e) the giving of any notice of any claim or event giving rise to indemnity shall not excuse the obligation to give notice of any subsequent claim or event giving rise to indemnity.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") If either Party proposes to seek indemnification from the other (under the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from provisions of this Section XII, it shall notify the assertion other Party within 15 days of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement any Claim and shall cooperate fully with the other Party in the defense of such claims or suits. The indemnified Party shall cooperate with the indemnifying Party (at the indemnifying Party’s expense) in all respects in connection with the defense of any action evidenced by service of process or other legal pleadingsuch Claim. The indemnifying Party shall, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party upon written notice thereof together from the indemnified Party of a Claim, undertake to conduct all proceedings or negotiations in connection with a copy of such claimthe Claim, process or other legal pleadingassume the defense thereof, and all other required steps or proceedings to settle or defend any such Claim, including the indemnifying party selection of counsel that shall be approved by the indemnified Party, which approval shall not be unreasonably withheld, and payment of all reasonable expenses. The indemnified Party shall have the right to undertake the defense thereof by representatives of its own choosing employ separate counsel and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own the indemnified Party’s sole expense.
(b) In the event that . If the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect Party fails to defend against such claimor settle in good faith any Claim as provided above, then the party to be indemnified will (upon further notice to the indemnifying party) Party shall have the right to undertake the defense, compromise or settlement take over sole control of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlementthe Claim and all negotiations for its settlement or compromise, compromise provided that the indemnifying Party shall be liable for (and shall pay as they become due) all costs and expenses (including attorneys’ fees) reasonably incurred by the indemnified Party in its defending or final determination thereof.
(c) Anything in this Section 6.03 to negotiating settlement of the contrary notwithstandingClaim. Notwithstanding the foregoing, the indemnifying party shall not settle any claim without Party primarily responsible for handling the Claim (as determined above) will first obtain the prior written consent of the party to be indemnified unless such other Party for any settlement involves only of a Claim that (i) does not include a complete release of the payment of money and the claimant provides to the party to be indemnified a release other Party from all liability in with respect of such claim. If thereto, (ii) compromises the settlement rights of the claim involves more than other Party, or (iii) imposes any restrictions on the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldother Party.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Affymetrix Instrument and Chip Supply Agreement (Affymetrix Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Investor hereunder with respect to claims their respective indemnities pursuant to this Section 12, resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such indemnified party and which may give rise to liability of the indemnifying party pursuant to this Section 12 stating (to the extent known or reasonably anticipated) the nature and basis of such claimClaim and the amount thereof.
(b) The indemnifying party shall engage counsel with respect to any such Claim, process such representation (including the compromise or other legal pleadingsettlement of any Claim) to be undertaken on behalf of the indemnified party, and the indemnified party shall have right to approve such counsel (such approval not to be unreasonably withheld). In the event the indemnifying party elects not to undertake such defense by its own counsel, the indemnifying party shall have give prompt written notice of such election to the right to indemnified party, and the indemnified party will undertake the defense thereof by counsel or other representatives designated by it, at the cost and expense of its own choosing the indemnifying party (such costs and at its own expense; provided, however, that the party expenses of such defense to be advanced by the indemnifying party as incurred by the indemnified may participate in the defense with counsel of its own choice and at its own expenseparty).
(bc) In the event that any Claim shall arise out of a transaction or cover any period or periods wherein the indemnifying partyCompany, by on the 30th day after receipt of notice of any such claim (orone hand, if earlierand the Investor, by on the 10th day preceding the day on which an answer or other pleading must hand, shall each be served in order to prevent judgment by default in favor liable hereunder for part of the person asserting liability or obligation arising therefrom, then the parties shall, each choosing its or his own counsel and bearing its or his own expense, defend such claim)Claim, does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, and no settlement or compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim Claim may be made without the joint consent or approval of the each party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, (which consent shall not be unreasonably withheld), except where the respective liabilities and obligations of the parties are clearly allocable or attributable on the basis of objective facts.
(d) The party to be indemnified and the amount which any indemnifying party will each cooperate with all reasonable requests is or may be required to pay any indemnified party pursuant to this Section 12 shall be measured taking into account (i) any income tax savings (and income tax cost attributable to the indemnity payment) actually realized (or occurred) that affect the overall economic impact of the otherlosses to the indemnified party, and (ii) any insurance proceeds actually realized and adverse insurance consequences incurred (such as premium adjustments and other detriments) that affect the overall economic impact of the losses to the indemnified party.
Appears in 1 contract
Samples: Note Purchase Agreement (Doctors Health System Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser or Purchaser, as the case may be (the "indemnifying partyParty") to the other Persons (the "party Party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties any claim or demand for indemnification shall be subject to the following terms and conditions:
(a) Within 20 The Party to be indemnified shall promptly give notice to the indemnifying Party of any claim, whether between the Parties or brought by a third party, specifying both the basis for and the amount of such claim, to the extent specified or otherwise known. If the claim or demand for indemnification relates to a claim, action, suit, or proceeding asserted or filed by a Third Party against the Party to be indemnified (a "Third-Party Claim"), then such notice shall be given by the Party to be indemnified within twenty (20) days of receipt thereof (or such earlier time as might be required to avoid prejudicing the indemnifying partyParty's position including position). The failure of the entry Party to be indemnified to give such notice shall not relieve the indemnifying Party of its obligations hereunder, except to the extent the indemnifying Party is actually prejudiced thereby.
(b) Following receipt of notice from the Party to be indemnified of a default judgmentclaim or demand for indemnification, the indemnifying Party shall have twenty (20) after days to make such investigation of the claim or demand as the indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Party to be indemnified agrees to make available to the indemnifying Party (or its authorized representatives) the information relied upon by the Party to be indemnified to substantiate the claim or demand. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such twenty (20) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim or demand, then the indemnifying Party shall immediately pay to the Party to be indemnified the full amount of the claim or demand to the extent that such Party to be indemnified is entitled to indemnification pursuant to this Section 9.3. If the Party to be indemnified and the indemnifying Party do not agree within such period (or any mutually agreed upon extension thereof), then the Party to be indemnified may pursue or exercise any remedies or rights available to it.
(c) After receipt of notice of commencement of any action Third-Party Claim evidenced by service of process or other legal pleading, or with reasonable promptness after the any other assertion in writing of any claim by a third partyThird-Party Claim, the party Party to be indemnified shall give the indemnifying party Party written notice thereof together with a copy of such claim, process process, or other legal pleading, and pleading within the period set forth in the second sentence of Section 9.3 (a). The failure of a Party to be indemnified to give the indemnifying party Party such notice shall not relieve the indemnifying Party of its obligations under Section 9.3 except to the extent the indemnifying Party is actually prejudiced thereby. The indemnifying Party shall have the right to undertake the defense thereof defense, compromise, or settlement of the Third-Party Claim, by representatives of its own choosing and at its own expense; providedexpense so long as the indemnifying Party agrees to assume and conduct, howeverand diligently conducts, that such defense (or, if applicable, compromise or settlement). In such event the party Party to be indemnified may participate in the defense defense, compromise, or settlement with counsel of its own choice and at its own expense.
(bd) In the event that If the indemnifying partyParty, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimplaintiff), does not elect to defend against such claimThird-Party Claim, then the party Party to be indemnified will shall have the right (upon further notice to the indemnifying partyParty) have the right to retain counsel and undertake the defense, compromise compromise, or settlement of such claim Third-Party Claim on behalf of of, and for the account and risk of of, the indemnifying party Party and at the indemnifying partyParty's expense, subject to the right of the indemnifying party Party to assume participate, with its own counsel and at its own expense, in the defense defense, settlement, or compromise. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of the period set forth in this Section 9.3(d) (or any mutually agreed upon extension thereof) to the validity and amount of such claims at any time prior Third-Party Claim, then the indemnifying Party shall immediately pay to settlement, compromise or final determination thereofthe Party to be indemnified the amount so agreed.
(ce) Anything If there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying Party and the Party to be indemnified in this Section 6.03 to the contrary notwithstandingdefending, compromising, or settling a Third-Party Claim, the indemnifying party Party shall be responsible for paying for separate counsel for the Party to be indemnified. In such event, however, if there is more than one Party to be indemnified, the indemnifying Party shall not settle be responsible for paying for more than one separate counsel (which may be a firm of attorneys) to represent the Parties to be indemnified, regardless of the number of Parties to be indemnified.
(f) The indemnifying Party may compromise, settle, or resolve any claim Third-Party Claim without the consent of the party Party to be indemnified unless if such settlement compromise, settlement, or resolution involves only the payment of money by the indemnifying Party (whether on its own behalf or on behalf of the Party to be indemnified) and the claimant provides to the party Party to be indemnified a release from all liability Liability in respect of such claim. If the settlement of the claim involves more than the payment of moneyOtherwise, the indemnifying party shall Party may not settle compromise, settle, or resolve the claim without the prior written consent of the party Party to be indemnified, which consent shall may not be unreasonably withheld.
(dg) The party Party to be indemnified and the indemnifying party will each Party must cooperate with all reasonable requests of the other in the defense of any Third-Party Claim.
(h) Notwithstanding anything to the contrary in this Section 9.3, with respect to an obligation of Seller to indemnify Purchaser pursuant to Section 9.2(a) above with respect to any Environmental Claim that requires any removal, remediation, response, clean up or other corrective action ("Remediation"), Seller may elect to implement and complete such Remediation. If Seller elects to conduct the Remediation:
(i) Seller, in good faith, will coordinate the schedule of the Remediation with Purchaser so that disruptions of Purchaser's operations will be minimized;
(ii) Seller will obtain the prior written approval of Purchaser, which approval will not be unreasonably withheld, for any consultant or contractor retained by Seller to investigate, design or implement the Remediation;
(iii) Seller will conduct the Remediation in compliance with all applicable federal, state and local laws and regulations and as directed by the appropriate Governmental Body; and
(iv) Seller will not agree to or select any Remediation that imposes any material obligation on Purchaser, including, without limitation, the obligation to sign manifests or obtain permits, without the prior written consent of the Purchaser, which consent shall not be reasonably withheld.
(v) During the period in which Seller is conduction a Remediation pursuant to this Section 9.3(c), Purchaser shall provide Seller and its consultants and contractors reasonable access to the affected property for the purpose of conducting activities related to the Remediation, including where necessary the use of heavy equipment. Any such access shall be subject to reasonable restrictions imposed by Purchaser, including, without limitation, restrictions related to worker safety. Seller shall expeditiously remove from the property all drill cuttings, soil, debris or liquids generated from or in connection with the Remediation and shall restore the property and any existing structures or equipment removed or damaged in the course of the Remediation to a condition substantially the same as the condition that existed immediately prior to the Remediation. Seller or their consultants and contractors shall provide Purchaser at least five (5) business days' notice of the activities to be conducted on the property, which notice may be in the form of a schedule of activities.
(vi) Seller and Purchaser agree that any Remediation shall meet all requirements of the Governmental Body or Bodies directing the Remediation and shall not materially impede or increase the cost of Purchaser's business operations on the affected property. Purchaser acknowledges that the Remediation may be a "risk-based" Remediation pursuant to, and consistent with applicable federal, state and local laws and regulations, which may require the establishment of certain restrictions or conditions affecting the property on which the Remediation is being conducted. Purchaser agrees not to object to any such "risk-based" Remediation unless Purchaser's agreement will, in the good faith judgment of Purchaser, expose Purchaser to liability to third parties.
(vii) Seller shall not take any action or make any communication which has a material effect on the resolution or outcome of any Environmental Claim which could lead to the filing of an Environmental Claim against Purchaser, without providing at least five (5) business days advance notice (unless otherwise required by law) to Purchaser. Any material breach of this obligation shall relieve Purchaser of Liabilities under this Agreement with respect to the applicable Environmental Claim to the extent Purchaser has been prejudiced by the lack of timely and adequate notice. This notification requirement shall not apply to communications which are part of or relate to a judicial or administrative proceeding in which the Parties are litigating claims against each other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Buyer with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 ten (10) days (or such earlier time as might be required to avoid prejudicing the indemnifying partySeller's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process action, claim or other legal pleadingproceeding ("Claim") brought or asserted, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified Buyer shall give Seller (or in the indemnifying party case of Claim under Section 8.01(b), Xxxxx X. Xxxxxx) written notice thereof together with a copy of such claimClaim, process or other legal pleading, and the indemnifying party Seller shall have the right to undertake the defense thereof by representatives of its their own choosing and at its their own expense; provided, however, provided that the party to be indemnified Buyer may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by Buyer unless (i) Seller has agreed to pay such fees and expenses, (ii) Seller has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both Seller and a Buyer Party, and Buyer shall provide Seller with a statement of its counsel that there are one or more substantive and substantial legal defenses available to it that are different from or additional to those available to Seller (in which case, if Buyer informs Seller in writing that it elects to employ separate counsel at its own expensethe expense of Seller, Seller shall not have the right to assume the defense of such action on behalf of Buyer. It being acknowledged and agreed, however, that Seller shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for Buyer, which firm shall be designated in writing by Buyer).
(b) In the event that the indemnifying partySeller, by the 30th 15th day after receipt of notice of any such claim Claim (or, if earlier, by the 10th 5th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimClaim, the party to be indemnified Buyer will (upon further notice to the indemnifying partySeller) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party Seller and at the indemnifying partySeller's expense, subject to the right of the indemnifying party Seller to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof. In the event Buyer has assumed the defense of such claim, Buyer shall deliver to Seller notice of the terms and conditions of any settlement offer within ten (10) days before such settlement offer is delivered to the opposing party (or opposing counsel). If Seller fails to approve such settlement offer within ten (10) days after receipt thereof, then Seller agrees to promptly assume the defense of such Claim.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party Seller shall not settle any claim without the consent of the party to be indemnified Buyer unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified Buyer a release from all liability in respect of such claimClaim. If the settlement of the claim Claim involves more than the payment of money, the indemnifying party Seller shall not settle the claim without the prior written consent of the party to be indemnified, which consent shall not be unreasonably withheldBuyer.
(d) The party to be indemnified Buyer and the indemnifying party Seller will each cooperate with all al reasonable requests of the otherother relating to any Claim by third parties for which indemnification is sought.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (herein sometimes called the "indemnifying party"“Indemnifying Party”) to the other (herein sometimes called the "party to be indemnified"“Indemnified Party”) under Sections 6.01 10.1 and 6.02 10.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days Seller and Purchaser each agree to designate a single point of contact within each of their respective corporate organizations to give and receive notices of disputes under this Agreement and the Related Agreements (the “Dispute Officer”), who shall be acceptable to the other party and shall be a senior manager who either reports directly to the Chief Executive Officer or such earlier time as might a person who reports to a person who reports directly to the Chief Executive Officer. In the event of any claim by Purchaser or Seller against the other covered by this Article X that does not involve a claim, audit or inquiry by a third party to which a response must be required served in order to avoid prejudicing default or waiver of any defense, the indemnifying party's position including Parties agree that for a period of not less than 15 days following receipt of the entry claim by the Party against which the claim has been asserted, they each will respond to reasonable inquiries by the other Party and will hold at least one meeting in person or by telephone conference of the Dispute Officers to attempt to resolve the claim and to provide prompt reimbursement to the claiming Party of the amount agreed to be owed to such Party. To the extent that any amount of any claim remains in dispute at the end of the agreed period for consideration by the Dispute Officers, which shall not be less than 15 days following receipt of the claim by the Party against whom the claim has been made, the Party seeking recovery may proceed with its claim under Section 10.3(b). Any undisputed portion of any invoice or other claim that has been submitted pursuant to this Section 10.3 shall be paid to the Party to which such amount is owed within 15 days of the later of (i) the date the invoice or claim is received by the Indemnifying Party, (ii) the date a default judgmentbona fide dispute over such portion is resolved by agreement of the Parties, or (iii) if a bona fide dispute is not resolved by agreement, the date such dispute is otherwise finally resolved. Amounts not paid within the time limits provided in this Section 10.3(a) shall bear interest at the Contract Interest Rate.
(b) On or before the earliest of (i) the 20th day after receipt of notice (referred to herein as “notice”) of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing writing, formal or informal, of any claim, audit or inquiry (referred to herein as a “claim”), (ii) the tenth day preceding the day on which a responsive pleading must be served in order to prevent judgment by default in favor of the person asserting the claim, or (iii), in the case of a claim by a third partydescribed in (a) above, the party to be indemnified 30th day after expiration of the agreed period of consideration by the Dispute Officers, the Indemnified Party shall give the indemnifying party Indemnifying Party written notice thereof together with a copy of the document asserting such claim. Failure to give such notice timely shall not relieve the Indemnifying Party from any obligation under this Agreement except to the extent that the Indemnifying Party is prejudiced, process or other legal pleading, and except that the indemnifying party Indemnifying Party shall not be responsible for expenses incurred during the period within which the Indemnified Party failed to give notice. The Indemnifying Party shall have the right to respond to such claim and to undertake the defense thereof by representatives a representative of its own choosing (which shall be reasonably satisfactory to the Indemnified Party) and at its own expenseto enter into a settlement or compromise thereof or consent to a judgment with respect thereto; provided, however, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle or compromise any claim by any third party or consent to the entry of judgment (i) that does not include as an unconditional term thereof the party giving by the claimant or the plaintiff to be indemnified the Indemnified Party a release from all liability in respect of such claim, or (ii) that contemplates any payment or performance by the Indemnified Party. The Indemnified Party may participate in the defense with retain separate counsel of its own choice and at its own expense.sole cost and expense to represent it in any proceedings involving any claim;
(bc) In the event that the indemnifying partyIndemnifying Party, by the 30th 20th day after receipt of notice of any such a claim by a third party (or, if earlier, by the 10th fifth day preceding the day on which an answer or other a responsive pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), (i) does not elect to defend against such claim, or (ii) if an election to defend is made, does not provide reasonable assurances to the party Indemnified Party of (x) the Indemnifying Party’s (or its insurer’s) ability to pay defense costs and indemnity costs likely to be indemnified will incurred with respect to the claim, or (y) the Indemnifying Party’s active and diligent defense of the claim, the Indemnified Party will, upon further notice to the indemnifying party) Indemnifying Party, have the right to respond to such claim and to undertake the defenseto defend, compromise or settlement of settle such claim on behalf of and for the account and risk of loss of the indemnifying party and at the indemnifying party's expenseIndemnifying Party, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims claim upon satisfying conditions (i) and (ii) above at any time prior to the settlement, compromise or final determination thereof (if such assumption be permitted by any court or other tribunal having jurisdiction thereof.
(c) Anything in this Section 6.03 to ), provided that the contrary notwithstanding, the indemnifying party Indemnifying Party shall not settle any claim without the consent be given at least 15 days’ prior written notice of the party to be indemnified unless effectiveness of any such proposed settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.or compromise; and
(d) The party to be indemnified and In connection with any such indemnification, the indemnifying party will each Indemnifying Party shall cooperate with in all reasonable requests of the otherIndemnified Party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Security Capital Corp/De/)
Conditions of Indemnification. The respective several obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "“indemnifying party") ”), to the other (the "“party to be indemnified"”) under Sections 6.01 and 6.02 Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within as soon as reasonably practicable but not later than 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 7.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Samples: Securities Purchase Agreement (Savvis Communications Corp)
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof this Agreement with respect to indemnifiable claims resulting from the assertion of liability made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) choice. In the event that the indemnified party shall fail to give notice of such claim as aforesaid, such failure shall relieve the indemnifying party from their obligation to indemnify the indemnified party with respect to such claim, but only to the extent that the indemnifying party is prejudiced thereby.
(ii) If the indemnifying party undertakes the defense of any such claim, it shall promptly notify the indemnified party of such undertaking and the indemnified party shall use commercially reasonable efforts to assist the indemnifying party, at the expense of the indemnifying party, in the defense of such claim, and shall promptly send to the indemnifying party, at the expense of the indemnifying party, copies of any documents received by the 30th day indemnified party which reasonably relate to such claim.
(iii) If the indemnifying party, within a reasonable time after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer and in any event within 60 days after notice of such claim or at such earlier time as is reasonably necessary to respond to litigation or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimsimilar action), does not elect fails to defend the indemnified party against which such claimclaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof, except to the extent such assumption would prejudice the defense of such claim; and.
(iv) Anything in this Article VIII to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such claim; and (ii) the indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any claim or consent to the entry of any judgment which does not include as a term thereof the giving by the claimant or the plaintiff to the indemnified party a release from all liability with respect to such claim.
(b) Seller’s obligations to indemnify and hold the Purchaser Group harmless against Damages are subject to, and conditioned upon, the requirement that if the Purchaser Group has a reasonable good faith basis for asserting a claim for Damages, it shall give prompt written notice to Seller, setting forth in reasonable detail the basis of the claim and the amount thereof (or, if not then determinable by the Purchaser Group, a reasonable good faith estimate of the amount thereof).
(c) Anything in this Section 6.03 Purchaser’s and the Companies’ obligations to the contrary notwithstandingindemnify and hold Seller harmless against Damages are subject to, and conditioned upon, the indemnifying party requirement that if Seller has a reasonable good faith basis for asserting a claim for Damages, it shall not settle any claim without give prompt written notice to Purchaser, setting forth in reasonable detail the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement basis of the claim involves more than and the payment of moneyamount thereof (or, the indemnifying party shall if not settle the claim without the prior consent then determinable by Seller, a reasonable good faith estimate of the party to be indemnified, which consent shall not be unreasonably withheldamount thereof).
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hayes Lemmerz International Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Seller, Lender, and Purchaser (the "indemnifying party"Indemnifying Party) to the other (the "party Party to be indemnified"Indemnified) under Sections 6.01 12.1, 12.2 and 6.02 hereof 12.3 hereof, with respect to claims resulting from the assertion of liability by third parties parties, shall be subject to the following terms and conditions:
12.4.1 Within Sixty (a60) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying partyIndemnifying Party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any legal action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified Party To Be Indemnified shall give the indemnifying party Indemnifying Party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party Indemnifying Party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified Party To Be Indemnified may participate in the defense with counsel of its own choice and at its own expense. For all other claims or demands not the subject of court or regulatory authority or process, the Party To Be Indemnified shall give the Indemnifying Party written notice thereof together with a copy of any claim or demand within (10) days after receipt of the claim or demand. The Indemnifying Party shall then have the right to respond and undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the Party to Be Indemnified may participate in the response and the defense of the claim or demand with counsel of its own choice and at its own expense.
(b) 12.4.2 In the event that the indemnifying partyIndemnifying Party, by the 30th Seventh (7th) day after receipt of notice of any such claim legal action (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimlegal action, the party to be indemnified Party To Be Indemnified will (upon further notice to the indemnifying partyIndemnifying Party) have the right to undertake the defense, compromise or settlement of such claim legal action on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof. For all other claims not the subject of court or regulatory authority or process, if the Indemnifying Party, by the Tenth (10th) day after receipt of notice of the claim or demand does not elect to defend against such claim or demand, or within Ten (10) days and not prejudiced by lack of notice of entry of default judgment, the Party To Be Indemnified will (upon further notice to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such legal action on behalf of and for the account to the right of the Indemnifying Party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) 12.4.3 Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party Indemnifying Party shall not settle any claim without the consent of the party to be indemnified Party To Be Indemnified unless such settlement involves only the payment of money and the claimant provides to the party Party To Be Indemnified a release, in a form acceptable to be indemnified a release the Party To Be Indemnified, from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party Indemnifying Party shall not settle the claim without the prior consent of the party Party to be indemnifiedBe Indemnified, which consent shall not be unreasonably withheld.
(d) 12.4.4 The party Party to be indemnified Be Indemnified and the indemnifying party Indemnifying Party will each cooperate with all reasonable requests of the other.
12.4.5 Anything in this Section to the contrary notwithstanding, the failure of the Party To Be Indemnified to give notice as required shall not void the right if indemnity unless the failure to notify materially prejudices the Indemnifying Party. For the purposes of this Section, the entry of a default judgment constitutes material prejudice.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 6.1 and 6.02 hereof 6.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company, Shareholder, Purchaser and Purchaser Parent (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 6.5(h), 7.1 and 6.02 hereof 7.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 twenty (20) days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action 10 evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense defenses with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified indemnified, such consent not to be unreasonably withheld, unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) . The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of the Seller Group and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Acquiror Group with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b) In If the event that indemnifying party undertakes the defense of any such Claim, the indemnified party shall, to the best of its ability, assist the indemnifying party, at the expense of the indemnifying party, in the defense of such Claim, and shall promptly send to the indemnifying party, at the expense of the indemnifying party, copies of any documents received by the 30th day indemnified party which relate to such Claim;
(c) If the indemnifying party, within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimClaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.; and
(cd) Anything in this Section 6.03 Article X to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Claim; and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in with respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Stock Purchase Agreement (HFS Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to will notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnifying Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice will be given within a reasonable (taking into account the party to be indemnified shall give nature of the indemnifying party Claim or Tax Claim) period of time after the Indemnified Party has actual Knowledge thereof. The Indemnifying Party will satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto will be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above will not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party will be entitled to contest or defend such Claim or demand or Tax Claim at its expense and through counsel of its own choosing, which counsel will be reasonably acceptable to the Indemnified Party, such right to contest or defend will only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand or Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of such Claims or demand or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand or Tax Claim. The Indemnified Party will have the obligation to cooperate in the defense of any such claim (orClaim or demand or Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or demand or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand or Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified Indemnified Party will (upon further notice to the indemnifying party) not settle or compromise such Claim or demand or Tax Claim. The Indemnifying Party will have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise demand or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party will make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand or Tax Claim and will otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand or Tax Claim, the indemnifying party shall not settle the claim without the prior consent of the party Indemnified Party will have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Securities Exchange and Acquisition Agreement (Your Internet Defender, Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and GAINSCO and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 7.1 and 6.02 hereof 7.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and 9 expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified, and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") No Party shall be entitled to assert any claim for indemnification pursuant to Section 10.2 or 10.3, to the other (the "party extent such claim relates to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability an alleged inaccurate or breached representation or warranty unless such claim is asserted by third parties shall be subject an Indemnification Claim Notice given prior to the following terms expiration of the representation or warranty giving rise to such claim (provided that a claim that is barred by the passage of time under one representation and conditions:
(a) Within 20 days (or such earlier time as might warranty may nevertheless be required brought under another if it is not barred under that other). In the case of the Buyer Indemnitees, no claim for indemnification may be asserted under Section 10.2 unless and only until the aggregate amount of the Damages attributable to avoid prejudicing the indemnifying party's position including Buyer Indemnitees for indemnification under Section 10.2 exceeds the entry Deductible, in which case the Buyer Indemnitees may claim for the amount of a default judgment) after receipt Damages in excess of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseDeductible; provided, however, that the party any claim for indemnification relating to any inaccurate or breached representation or warranty set forth in Section 7.25(f) shall not be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right Deductible. In the case of the indemnifying party Seller Indemnitees, no claim for indemnification may be asserted under Section 10.3 unless and only until the aggregate amount of the Damages attributable to assume the defense Seller Indemnitees for indemnification under Section 10.3 exceeds the Deductible, in which case the Seller Indemnitees may claim for the amount of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything Damages in this Section 6.03 excess of the Deductible. Notwithstanding anything to the contrary notwithstandingset forth in this Article X, the indemnifying party maximum aggregate obligation of the Sellers or the Buyer Company, as the case may be, pursuant to Section 9.13 and this Article X shall not settle exceed the Cap in the aggregate; provided, however, that any claim without the consent of the party for indemnification relating to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability any inaccurate or breached representation or warranty set forth in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent Section 7.25(f) shall not be unreasonably withheldsubject to the Cap.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser Each party indemnified pursuant to Sections 6.02, 6.03 or 6.04 hereof (an "indemnified party") agrees to give prompt notice to the party required to indemnify such indemnified party (an "indemnifying party") of the assertion of any claim, or the commencement of any suit, action or proceeding, whether brought against such indemnified party or brought by such indemnified party against the indemnifying party (each a "Claim"), in respect of which indemnity may be sought by such indemnified party under Section 6.02, 6.03 or 6.04 hereof or in respect of which such indemnified party may seek any other remedy against the indemnifying party under this Agreement; PROVIDED, HOWEVER, that the omission so to promptly notify the other (the "indemnifying party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting a Claim brought against such indemnified party will not relieve the indemnifying party from any liability which it may have to such indemnified party under Section 6.02, 6.03 or 6.04 hereof unless such failure materially prejudices the assertion of liability by third parties shall be subject indemnifying party with respect to the following terms and conditions:
(a) Within 20 days (defense of such Claim. If any indemnified party shall seek indemnity under Section 6.02, 6.03 or such earlier time as might be required to avoid prejudicing 6.04 hereof, the indemnifying party's position including , in the entry case of a default judgment) after receipt Claim brought against such indemnified party, shall be entitled to participate therein and, to the extent that it wishes, to assume and direct the defense and settlement thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to an indemnified party of notice its election to assume and direct the defense and settlement of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third Claim brought against such indemnified party, the indemnifying party shall not be liable to be such indemnified shall give party (or any of its affiliates) under Section 6.02, 6.03 or 6.04 hereof for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation undertaken at the request of the indemnifying party written notice thereof together with a copy of party; except that such claim, process or other legal pleading, and the indemnifying indemnified party shall have the right to undertake employ counsel to represent such party if, in the defense thereof by representatives reasonable judgment of its own choosing and at its own expense; providedsuch party, however, that the it is advisable for such party to be indemnified may participate represented by separate counsel, and in that event the defense with counsel of its own choice fees and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement expenses of such claim on behalf separate counsel shall be paid by such indemnified party. Notwithstanding the foregoing provisions of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding6.05, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of moneynot, the indemnifying party shall not settle the claim without the prior written consent of the an indemnified party to be indemnified, (which consent shall not be unreasonably withheld.
withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such indemnified party for a Claim brought against such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such proceeding (d) The party PROVIDED that, whether or not such a release is required to be indemnified and obtained, the indemnifying party will each cooperate shall remain liable to such indemnified party in accordance with all reasonable requests of Section 6.02, 6.03 or 6.04 hereof, as applicable, in the otherevent that a Claim is subsequently brought against such indemnified party).
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 9.1 and 6.02 hereof 9.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stevens International Inc)
Conditions of Indemnification. The respective obligations and liabilities of each of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Buyer with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b) In the event that If the indemnifying party, by the 30th day within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimClaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.; and
(c) Anything in this Section 6.03 Article IX to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the indemnify ing party's consent, the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such Claim, and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified of a release from all liability in respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 7.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not settle any claim without have the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of moneyright, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.at its own cost and
Appears in 1 contract
Samples: Securities Purchase Agreement (Aurora Electronics Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser the party responsible for indemnifying hereunder (sometimes referred to herein as "the "indemnifying party") ), and the party entitled to indemnification hereunder (sometimes referred to herein as "the other (the "party to be indemnified" or ") the indemnified party"), under Sections 6.01 6.02, 6.03, 6.04 and 6.02 6.05, 6.06 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right obligation to undertake the defense thereof by representatives of its own choosing and at its own expensereasonably satisfactory to the indemnified party; provided, however, that the indemnified party to be indemnified may retain separate co-counsel at its sole cost and expense and participate in the defense with counsel of its own choice and at its own expense.the third party claim;
(b) In the event that the indemnifying party, by the 30th thirtieth day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against assume the defense of such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything Other than as set forth in this Section 6.03 to the contrary notwithstanding6.07(b), the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without except with the prior written consent of the party to be indemnified, which no indemnifying party, in the defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the party to be indemnified or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such party to be indemnified of a release from all liability with respect to such claim or litigation. In the event that the party to be indemnified shall in good faith determine that the representation of both the indemnifying and indemnified parties would be inappropriate due to a conflict of interest arising from the availability to the indemnified party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the indemnifying party in respect of such claim or any litigation relating thereto, the party to be indemnified shall have the right (subject to applicable rules of professional conduct) at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to such claim at the sole cost of the indemnifying party; provided, however, that if the party to be indemnified does so take over and assume control, the party to be indemnified may consent to the entry of any judgment or enter into any settlement with respect to any third party claim in any manner it may deem appropriate and, in the event that the indemnifying party did not undertake the defense of such claim due to a conflict of interest, such consent to entry of judgment or entry into any settlement will be subject to the approval, not to be unreasonably withheld., of the indemnifying party; and
(d) The In connection with any such indemnification, the party to be indemnified and the indemnifying party will each shall cooperate with all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof parties with respect to claims resulting from the assertion of liability by third parties Claims shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b) In the event that if the indemnifying party, by party fails to defend the 30th day indemnified party against such Claim within a reasonable time after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor being notified of the person asserting such claim)Claim, does not elect to defend against such claim, then the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defensedefend, compromise or settlement of settle such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.; provided, that the indemnified party shall provide the indemnifying party with notice of any proposed settlement or compromise of such Claim (as far in advance of the actual settlement or compromise of the Claim as is reasonably practicable); and
(c) Anything anything in this Section 6.03 Agreement to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may have a Material Adverse Affect on the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at the cost and expense of the indemnifying party, to manage the defense, compromise or settlement of such Claim; provided, however, that if such Claim is settled without the indemnifying party's consent (which consent shall not be unreasonably withheld), the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such Claim; and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 9.2 hereof with respect to claims resulting from the assertion of liability Purchaser Claims or Seller Claims made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the indemnified party to be indemnified shall will give the indemnifying party written notice thereof together with a copy notification of such claim, process any Purchaser Claim or other legal pleadingSeller Claim made by third parties, and the indemnifying party shall have the right right, so long as it acts with reasonable diligence to defend such claim, to undertake the defense thereof by counsel and other representatives chosen by it in each case reasonably acceptable to the indemnified party;
(ii) in the event the indemnifying party assumes the defense of its own choosing a claim, the indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its own expense; provided, however, that unless (A) the indemnified party is required to be indemnified may participate retain separate counsel due to a conflict of interest with the indemnifying party or (B) the indemnifying party fails to act with reasonable diligence in the defense with counsel of its own choice and at its own expense.defending such claim;
(biii) In the event that if the indemnifying party, by the 30th day within twenty (20) Business Days after receipt of notice of any such claim (orPurchaser Claim or Seller Claim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served fails to agree in order to prevent judgment by default in favor of the person asserting such claim), does not elect writing to defend the indemnified party against which such claimPurchaser Claim or Seller Claim has been asserted or thereafter fails to reasonably defend such party, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Purchaser Claim or Seller Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, (subject to the right of the indemnifying party thereafter to assume such defense in accordance with this Section 9.3); provided that the indemnified party shall not, without the written consent of the indemnifying party, settle or -------- compromise any Purchaser Claim or Seller Claim, as the case may be, or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party a release from any and all liability or obligation in respect to such Purchaser Claim or Seller Claim, as the case may be;
(iv) no claim shall be settled without the indemnified party's prior written consent, which consent shall not be unreasonably withheld or delayed, unless the settlement involves only the payment of monetary consideration by the indemnifying party and includes an unconditional release of the indemnified party; and
(v) whether or not an indemnifying party chooses to defend a claim, all the parties hereto shall cooperate in the defense of or prosecution thereof and shall furnish such claims at any time prior to settlementrecords, compromise or final determination thereofinformation and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
(cb) Anything in this Section 6.03 9.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Purchaser Claim or a Seller Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Purchaser Claim or Seller Claim; provided, however, that if such Purchaser Claim or Seller Claim is settled without the indemnifying party's consent (which consent shall not be unreasonably withheld, delayed or conditioned), the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such Purchaser Claim or Seller Claim, and (ii) with respect to any Purchaser Claims or Seller Claims relating to Taxes, the indemnifying party shall not settle or compromise any claim Purchaser Claim or Seller Claim or enter into any closing or other final agreement with any taxing authority without the written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldparty.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) The respective indemnification obligations and liabilities of Seller and Purchaser any party (in this Article V referred to as the "indemnifying partyINDEMNIFYING PARTY") to the any other party (in this Article V referred to as the "party to be indemnifiedPARTY TO BE INDEMNIFIED") under Sections 6.01 and 6.02 hereof Article V with respect to claims Damages resulting from the assertion of liability or other claims by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) With reasonable promptness after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; providedPROVIDED, howeverHOWEVER, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In . If the event that indemnifying party undertakes such defense, the indemnified party shall cooperate with the indemnifying party in such defense and make available to the indemnifying party, at such party's expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably requested by the 30th day after receipt of notice of any such claim indemnifying party.
(or, if earlier, by ii) If the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), indemnifying party does not elect to defend against such claimclaim or if the indemnifying party fails to take reasonable steps necessary to defend diligently such claim within ten days after receiving written notice to that effect from the party to be indemnified, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party party, to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(ciii) Anything in this Section 6.03 Article V to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(db) The In the event that the party to be indemnified asserts the existence of Damages (but excluding Damages resulting from the assertion of liability or other claims by third parties), it shall give written notice to the indemnifying party. Such written notice shall state that it is being given pursuant to this Article V, specify the nature and amount of the Damages asserted and indicate the date on which such assertion shall be deemed accepted and the amount of the Damages deemed valid Damages (such date to be established in accordance with the next sentence). If the indemnifying party, within sixty days after the mailing of notice by the party to be indemnified shall not given written notice to the party to be indemnified announcing its intention to contest such assertion of the party to be indemnified, such assertion shall be deemed accepted and the amount of Damages shall be deemed valid Damages. In the event, however, that the indemnifying party contests the assertion of Damages by giving such written notice to the party to be indemnified within said period, then if the parties hereto, acting in good faith, cannot reach agreement with respect to such Damages within thirty days after such notice, the contested assertion of Damages shall be resolved by a court having jurisdiction in the matter.
(c) The failure to give timely notice in this Section 5.2 will each cooperate with all reasonable requests not affect the rights or obligations of any party hereunder, except and only to the otherextent that, as a result of such failure, any party that was entitled to receive such notice was materially prejudiced as a result of such failure.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities right of any EGM Indemnitee or any Seller and Purchaser Indemnitee, as the case may be (the any such indemnitee, an "indemnifying partyIndemnitee") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof indemnity with respect to claims resulting from for EGM Damages or Seller Damages under Section 6.1 or 6.2, as the assertion of liability by third parties case may be (any such claim, a "Claim"), shall be subject to the following terms and conditions:
(a) Within 20 days Such Indemnitee shall give the party or parties from which indemnity is sought (any such recipient of any such notice, the "Indemnifying Parties") prompt notice of any Claim asserted against or incurred by such earlier time as might Indemnitee (but in no event later than the date set forth in Section 6.1(a) hereof) and shall specify in reasonable detail the fact alleged to constitute a basis for such Claim. Such Indemnitee shall permit the Indemnifying Parties (at their own expense) to assume the defense of any claim or any litigation resulting therefrom, provided that (i) counsel for the Indemnifying Parties who shall conduct the defense of such claim or litigation shall be required reasonably satisfactory to avoid prejudicing such Indemnitee, and (ii) such Indemnitee may participate in such defense at the indemnifying party's position including expense of such Indemnitee. Except with the prior written consent of such Indemnitee, the Indemnifying Parties, in the defense of any such Claim, shall not consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting such Indemnitee. Except with the consent of the Indemnifying Parties, in the defense of any such Claim in which the Indemnifying Parties have assumed the defense, such Indemnitee shall not consent to the entry of a default judgment) after receipt any judgment or enter into any settlement. After notice from the Indemnifying Parties to such Indemnitee of notice their election to assume the defense of commencement of such claim or action, the Indemnifying Parties shall not be liable to such Indemnitee under Sections 6.1, 6.2 or 6.3 for any action evidenced by service of process legal or other legal pleading, or expenses subsequently incurred by such Indemnitee in connection with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives thereof, other than reasonable costs of its own choosing and at its own expenseinvestigation; provided, however, that such Indemnitee shall have the party right to be indemnified may employ separate counsel in any such action and to participate in the defense with thereof, but the fees and expenses for such counsel shall be at the expense of its own choice such Indemnitee unless (x) the employment thereof has been specifically authorized by the Indemnifying Parties or (y) such Indemnitee shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying parties and at its own expensein the reasonable judgment of such counsel it is advisable for such Indemnitees to employ separate counsel.
(b) In the event that within thirty (30) business days after the indemnifying party, by the 30th day after Indemnifying Parties' receipt of an Indemnitee's delivery of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order Claim pursuant to prevent judgment by default in favor of the person asserting such claimSection 6.3(a), does not elect the Indemnifying Parties fail to notify such Indemnitee of their intention to defend against such claim, the party to be indemnified will such Indemnitee shall (upon further notice to the indemnifying partyIndemnifying Parties) have the right to undertake the defense, compromise compromise, settlement or settlement payment in full of such claim on behalf of and Claim for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereofIndemnifying Parties.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller DESC and Purchaser (the "indemnifying party") to JV Entities and the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Xxxxx Entities with respect to claims resulting from the assertion of liability Seller Indemnified Claims and Buyer Indemnified Claims (collectively, “Claims”) made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall will give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim, and the indemnifying party shall have the right to undertake the defense thereof by representatives chosen by it. In any event, notice of its own choosing and at its own expense; provided, however, that any Claim shall be made no later than the party day on which one-half of the term provided by applicable law to be indemnified may participate in the defense with counsel of its own choice and at its own expense.defend such Claim has lapsed;
(bii) In the event that If the indemnifying party, by the 30th day within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimClaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.; and
(ciii) Anything in this Section 6.03 Article XI to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the indemnifying party’s consent, the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such Claim, and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in respect to such Claim.
(b) With respect to any Buyer Indemnified Claim for which indemnification is requested by DESC or any of the JV Entities from any of the Xxxxx Entities or any Seller Indemnified Claim for which indemnification is requested by any of the Xxxxx Entities from DESC or any of the JV Entities, the indemnified party shall deliver a notice of such claimClaim with reasonable promptness to the indemnifying party. If the settlement indemnifying party notifies the indemnified party that it does not dispute the Claim described in such notice or fails to notify the indemnified party within 20 calendar days after delivery of such notice by the indemnified party whether the indemnifying party disputes the Claim described in such notice, the amount claimed in the indemnified party’s notice will be conclusively deemed a liability of the claim involves more than the payment of money, indemnifying party and the indemnifying party shall not settle be required to satisfy the amount of such claim without in full. If the prior consent indemnifying party has timely disputed its liability with respect to such claim, an officer or representative of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests proceed in good faith to negotiate a resolution of such dispute, and if not resolved through the negotiations of such individuals within 20 calendar days after the delivery of the otherindemnified party’s notice of such claim, such dispute shall be resolved fully and finally in New York, New York by an arbitration governed by the Rules of Arbitration of the International Chamber of Commerce. The arbitration panel shall be composed of three arbitrators, with one arbitrator being selected by the Xxxxx Entities, one arbitrator being selected by DESC and the JV Entities and the third arbitrator being selected by the other two arbitrators. The arbitration panel shall resolve the dispute within 30 calendar days after selection and judgment upon the award rendered by such arbitration panel shall be deemed final and binding on the parties and may be entered in any court of competent jurisdiction. The party whose determination of the payment amount in dispute is furthest from the amount determined by the arbitration panel shall bear its own costs and expenses of such arbitration, the fees and expenses of the arbitration panel and the out-of-pocket costs and expenses (including legal fees) of the other party thereto.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller TSI or XXXXXX, as the case may be (for purposes of this Section, the "INDEMNIFYING PARTIES"), to protect, defend, indemnify and Purchaser hold harmless the other Party (the "indemnifying party") to the other (the "party to be indemnifiedINDEMNIFIED PARTY") under Sections 6.01 and 6.02 hereof Section 6.1 or 6.2 above with respect to claims resulting from the assertion of liability asserted by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) promptly after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified Indemnified Party shall give the indemnifying party Indemnifying Party written notice thereof thereof, together with a copy of such claim, process process, or other legal pleading, and the indemnifying party Indemnifying Party shall have the right to undertake the defense thereof by representatives of its own choosing (subject to the right of the Indemnified Party to reasonably consent thereto) and at its own expense; providedPROVIDED, howeverHOWEVER, that the party to be indemnified Indemnified Party may participate in the defense with counsel of its own choice and at its own expense.. The failure to give the preceding notice shall not operate as a waiver of any indemnification rights hereunder so long as the Indemnifying Party is not prejudiced as a result thereof, and the Indemnifying Party shall undertake the defense in accordance with the foregoing as soon as it learns of the third party claim even though it may learn of such claims through some other means;
(bii) In in the event that the indemnifying partyIndemnifying Party, by the 30th thirtieth (30th) day after receipt of notice (as set forth above) of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall have the right right, but not the obligation, to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying partyIndemnifying Party's expense, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.;
(ciii) Anything anything in this Section 6.03 section to the contrary notwithstanding, the indemnifying party Indemnifying Party shall not settle any claim without the prior written consent of the party to be indemnified Indemnified Party unless such settlement involves only the payment of money and does not involve any admission of liability or stipulation of fact which the Indemnified Party believes in its sole discretion may have an adverse effect on it and the claimant provides to the party to be indemnified Indemnified Party a full release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of moneymoney or involves an admission of liability or stipulation of fact, the indemnifying party Indemnifying Party shall not settle the claim without the prior written consent of the party to be indemnified, which consent shall not be unreasonably withheld.Indemnified Party; and
(div) The party to be indemnified the Indemnified Party and the indemnifying party Indemnifying Party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Membership Interest Exchange Agreement (Key Energy Services Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Shareholders and Purchaser Parent (the "indemnifying partyindemnitor") to the other parties (the "party to be indemnifiedindemnitees") under Sections 6.01 10.01 and 6.02 hereof 10.02 with respect to claims resulting from the assertion of liability by third parties parties, shall be subject to the following terms and conditions:
(a) Within 20 In the event that a legal proceeding, or action is commenced against the indemnitees with respect to any indemnified matter, that indemnitees promptly will provide written notice thereof to the indemnitor (but in no event later than ten (10) days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleadingnotice), or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such any claim, process or other legal pleading. The indemnitor will undertake the defense thereof, as its expense, by counsel of its own choosing, and reasonably acceptable to the indemnifying party indemnitees; provided that the indemnitees may participate in all aspects of the defense with, or without, counsel of its own choice. In the event that the indemnitees elect to retain additional counsel of their own choice, the fees and expenses of said counsel shall have be the right exclusive responsibility of the indemnitees unless (i) the indemnitor has agreed to pay such fees and expenses, (ii) the indemnitor has failed to undertake the defense thereof of such action, or (iii) if the nature of any action presents a conflict between the interests of the indemnitor and the indemnitees, or the indemnitees have been advised by representatives of its own choosing and at its own expense; providedcounsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnitor (in which case, howeverif the indemnitees inform the indemnitor in writing, that it elects to employ separate counsel at the party expense of the indemnitor, the indemnitor shall have no further right to be indemnified may participate in or undertake the defense of such action on behalf of the indemnitees except with counsel respect to payment of its own choice and at its own expensefull indemnification for any Damages).
(b) In Except for failure by the indemnitees to provide notice as provided for above in subsection (a), in the event that the indemnifying partyindemnitor, by on or before the 30th thirtieth day after receipt of notice of any such claim (action, or, if applicable and earlier, by on or before the 10th tenth day preceding the day on which an answer answer, appearance or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim)claim or other prejudice to the indemnitees, does not elect fails to defend against undertake the defense of such claimaction, the party to be indemnified indemnitees will (upon further notice to the indemnifying party) have the right to retain counsel of their own choosing and undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party indemnitor without waiving the indemnitee's right to full indemnification from the indemnitor and at the indemnifying partyindemnitor's expense, subject to the right of the indemnifying party indemnitor to assume the defense of such claims at any time prior to settlement, compromise or final determination thereofthereof with counsel reasonably acceptable to the indemnitees.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party indemnitor shall not settle any claim asserted against the indemnitees without the prior consent of the party to be indemnified indemnitees unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified indemnitees with a release from all liability in respect of such claim. If the settlement of the claim any claims involves more than the payment of money, the indemnifying party indemnitor shall not settle the claim without the prior written consent of the party to be indemnifiedindemnitees, which consent shall not be unreasonably withheld. In the event the indemnitor has not undertaken the defense, as described above, with respect to any claim resulting from the assertion of liability by third parties, the indemnitor may settle any claim without prior notice to and consent of the indemnifying party, and indemnitor agrees to promptly, and in any event within thirty days after receipt of written demand, reimburse indemnitees for all Damages, including without limitation all amounts paid or incurred in connection with such settlement, together with attorneys' fees, costs and expenses and other costs incurred in connection with defense of the claim.
(d) The party to be indemnified indemnitees and the indemnifying party indemnitor will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Tca Cable Tv Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser Each party indemnified pursuant to Section 5.02 or 5.03 hereof (the an "indemnifying partyINDEMNIFIED PARTY") agrees to give prompt notice to the other party required to indemnify such indemnified party (the an "party to be indemnifiedINDEMNIFYING PARTY") of the assertion of any claim, or the commencement of any suit, action or proceeding, whether brought against such indemnified party or brought by such indemnified party against the indemnifying party (each a "CLAIM"), in respect of which indemnity may be sought by such indemnified party under Sections 6.01 and 6.02 Section 5.02 or 5.03 hereof or in respect of which such indemnified party may seek any other remedy against the indemnifying party under this Agreement; PROVIDED, however, that the omission so to promptly notify the indemnifying party with respect to claims resulting a Claim brought against such indemnified party will not relieve the indemnifying party from any liability which it may have to such indemnified party under Section 5.02 or 5.03 hereof unless such failure materially prejudices the assertion of liability by third parties shall be subject indemnifying party with respect to the following terms and conditions:
(a) Within 20 days (defense of such Claim. If any indemnified party shall seek indemnity under Section 5.02 or such earlier time as might be required to avoid prejudicing 5.03 hereof, the indemnifying party's position including , in the entry case of a default judgment) after receipt Claim brought against such indemnified party, shall be entitled to participate therein and, to the extent that it wishes, to assume and direct the defense and settlement thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to an indemnified party of notice its election to assume and direct the defense and settlement of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third Claim brought against such indemnified party, the indemnifying party shall not be liable to be such indemnified shall give party (or any of its affiliates) under Section 5.02 or 5.03 hereof for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation undertaken at the request of the indemnifying party written notice thereof together with a copy of party; except that such claim, process or other legal pleading, and the indemnifying indemnified party shall have the right to undertake employ counsel to represent such party if, in the defense thereof by representatives reasonable judgment of its own choosing and at its own expense; providedsuch party, however, that the it is advisable for such party to be indemnified may participate represented by separate counsel, and in that event the defense with counsel of its own choice fees and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement expenses of such claim on behalf separate counsel shall be paid by such indemnified party. Notwithstanding the foregoing provisions of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding5.04, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of moneynot, the indemnifying party shall not settle the claim without the prior written consent of the an indemnified party to be indemnified, (which consent shall not be unreasonably withheld.
withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such indemnified party for a Claim brought against such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such proceeding (d) The party PROVIDED that, whether or not such a release is required to be indemnified and obtained, the indemnifying party will each cooperate shall remain liable to such indemnified party in accordance with all reasonable requests of Section 5.02 or 5.03 hereof, as applicable, in the otherevent that a Claim is subsequently brought against such indemnified party).
Appears in 1 contract
Samples: Deferred Securities Purchase Agreement (Carrols Corp)
Conditions of Indemnification. The respective obligations and liabilities of the Shareholders and the Companies to indemnify the Buyer Group and the Buyer to indemnify the Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") Group under Sections 6.01 and 6.02 Section 7.2 hereof with respect to claims Buyer Claims and Seller Claims, respectively, resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall will give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to will undertake the defense thereof by representatives of its own choosing and at its own expense; providedreasonably satisfactory to the indemnified party, however, provided that failure to provide such notice will not relieve the indemnifying party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that obligations hereunder unless it is actually prejudiced by such failure to receive such notice. If the indemnifying party, by the 30th day within ten (10) days after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend against such claim, the indemnified party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(cb) Anything in this Section 6.03 7.4 to the contrary notwithstanding, (i) an indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle or participate in the defense, compromise or settlement of such claim, (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment (x) which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in respect of such claim. If claim or (y) as a result of which injunctive or other equitable relief would be imposed against the indemnified party, and (iii) the indemnified party shall have the right to control the defense or settlement of that portion of any claim which seeks an order, injunction or other equitable relief against the indemnified party which, if successful, could materially interfere with the business, operations, assets, financial condition or prospects of the indemnified party; provided, however, that in connection with the defense or settlement of the portion of such claim involves more than which seeks equitable relief, the payment of money, indemnified party shall cooperate with the indemnifying party shall not settle and use its reasonable best efforts to limit the claim without the prior consent liability of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests for the damages portion of the othersuch claim.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and ----------------------------- liabilities of Seller NOSP and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Company with respect to claims Claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a1) Within 20 days The party hereto seeking indemnification (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including "Indemnitee") will give the entry of a default judgmentother party hereto (the "Indemnitor") after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness such Claim reasonably promptly after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written Indemnitee receives notice thereof together with a copy of such claim, process or other legal pleadingthereof, and the indemnifying party shall have the right to Indemnitor will undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b2) In the event that the indemnifying partyIndemnitor, by the 30th day within ten (10) business days after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend against such claimClaim, the party to be indemnified Indemnitee will (upon further giving written notice to the indemnifying partyIndemnitor) have the right right, but not the obligation, to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expenseIndemnitor, subject to the right of the indemnifying party Indemnitor to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.
(c3) Anything in this Section 6.03 to the contrary notwithstanding, if there is a reasonable probability that a Claim may materially and adversely affect the indemnifying party Indemnitee other than as a result of money damages or other money payments, the Indemnitee shall not have the right to defend, compromise or settle any claim such Claim, in good faith, on behalf of and for the account and risk of the Indemnitor. However, the Indemnitee shall not, without the Indemnitor's written consent, settle or compromise any Claim or consent to entry of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a any judgment which does not include an unconditional release from all liability in respect of such claimClaim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitor and the Indemnitee. If To the settlement of the claim involves more than the payment of moneygreatest extent reasonably possible, the indemnifying party parties shall not settle the claim without the prior consent of the party attempt to be indemnified, which consent shall not be unreasonably withheldobtain general releases from such plaintiff or claimant.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company Stockholders, on the one hand, and Purchaser GSS and Parent, on the other hand (herein sometimes called the "indemnifying party") ), to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 and 6.02 Section 8.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Except with the contrary notwithstanding, the indemnifying party shall not settle any claim without the prior written consent of the indemnified party, no indemnifying party, in the defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the indemnified party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to be such indemnified unless such settlement involves only the payment party of money and the claimant provides to the party to be indemnified a release from all liability with respect to such claim or litigation. In the event that the indemnified party shall in good faith determine that the indemnified party 32 38 may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the indemnifying party in respect of such claim. If claim or any litigation relating thereto, the settlement indemnified party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to such claim at the sole cost of the claim involves more than indemnifying party; provided, however, that if the payment of moneyindemnified party does so take over and assume control, the indemnifying indemnified party shall not settle the such claim or litigation without the prior written consent of the party indemnifying party, such consent not to be indemnified, which consent shall not be unreasonably withheld.
(d) The In connection with any such indemnification, the indemnified party to be indemnified and the indemnifying party will each shall cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller Seller, on the one hand, and Purchaser Buyer, on the other, (herein sometimes called the "indemnifying party") to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 and 6.02 Section 9.2 or Section 9.4 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything in this Section 6.03 9.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect 44 the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnified party shall not, without the prior written consent of the indemnifying party, settle or compromise any claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The In connection with any such indemnification, the indemnified party to be indemnified and the indemnifying party will each shall cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days A party entitled to indemnification hereunder (the “Indemnified Party”) shall notify the party or parties liable for such earlier time as might be required to avoid prejudicing indemnification (the indemnifying party's position including the entry of a default judgment“Indemnifying Party”) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes (“Tax Claim”) which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 11 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnifying Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand or Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand or Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of such Claims or demand or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand or Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand or Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or demand or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand or Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand or Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise demand or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand or Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand or Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnifying Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Samples: Securities Exchange Agreement (Glengarry Holdings LTD)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days A party entitled to indemnification hereunder (the “Indemnified Party”) shall notify the party or parties liable for such earlier time as might be required to avoid prejudicing indemnification (the indemnifying party's position including the entry of a default judgment“Indemnifying Party”) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes (“Tax Claim”) which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 11 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof this Agreement with respect to indemnifiable claims resulting from the assertion of liability made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with of any such claim (provided that a copy failure by such indemnified party to so notify the indemnifying party shall relieve the indemnifying party from the obligation to indemnify the indemnified party under this Article IX only to the extent that the indemnified party suffers actual prejudice as a result of such claim, process or other legal pleadingfailure), and the indemnifying party shall have the right right, subject to its agreement to indemnify the indemnified party, to undertake the defense thereof by representatives chosen by it and reasonably acceptable to the indemnified party; provided that, if an indemnifying party desires to reserve any rights against the indemnified party in its agreement to indemnify the indemnified party, the indemnified party may, in its sole discretion and without prejudice to its right of indemnification hereunder, undertake the defense of such claim itself and refuse to allow the indemnifying party to assume such defense;
(ii) If the indemnifying party undertakes the defense of any such claim, the indemnified party shall, (a) to the best of its own choosing ability, assist the indemnifying party, at the expense of the indemnifying party, in the defense of such claim, and shall promptly send to the indemnifying party, at the expense of the indemnifying party, copies of any documents received by the indemnified party which relate to such claim and (b) have the right to participate in the defense of such claim at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.;
(biii) In the event that If the indemnifying party, by the 30th day within a reasonable time after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimclaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.; and
(civ) Anything in this Section 6.03 Article IX to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such claim; and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnifiedparty, which consent shall not be unreasonably withheld, settle or compromise any claim or consent to the entry of any judgment which does not include as a term thereof the giving by the claimant or the plaintiff to the indemnified party a release from all liability with respect to such claim.
(dv) The party With respect to be indemnified any Damages relating to Sellers' breach of the representations contained in Section 5.2(b), upon Sellers' payment of such Damages, Purchaser shall assign to Sellers, on an "as is" basis without representation or warranty, the uncollected portion of the accounts receivable and/or notes receivable related to such Damages.
(b) Sellers' obligations to indemnify and hold the Purchaser Group harmless against Damages are subject to, and conditioned upon, the requirement that if the Purchaser Group has a reasonable good faith basis for asserting a claim for Damages, it shall give prompt written notice to Sellers, setting forth in reasonable detail the basis of the claim and the indemnifying party will each cooperate with all amount thereof (or, if not then determinable by the Purchaser Group, a reasonable requests good faith estimate of the otheramount thereof); provided, that the failure to give notice shall not relieve the Sellers of their obligations to indemnify and hold the Purchaser Group harmless against Damages, except to the extent the Sellers are prejudiced by the Purchaser Group's failure to give notice.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hayes Lemmerz International Inc)
