Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that: (a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances; (b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld); (c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and (d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mpower Holding Corp), Asset Purchase Agreement (Mpower Holding Corp)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action or proceeding made or brought by any Person who is not a Party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than twenty (20) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in 232 good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement.
(i) If, unless within twenty (20) calendar days after an Indemnitee provides written notice to the Indemnifying Party (iof any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in Section 8.2(a) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(ii) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within twenty (20) calendar days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or other similar circumstancesincurred by Indemnitee up to the date of such notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than twenty (20) calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of twenty (20) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such twenty (20) calendar day period, the Indemnifying 233 Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof to the date or repayment at the "prime rate" as published in The Wall Street Journal) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Illinova Corp), Asset Purchase Agreement (Illinois Power Co)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion or commencement of any Third Party Claim made or brought by any Person who is not a Party to this Agreement or any claim Affiliate of a Party to this Agreement with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than ten (10) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement.
(i) If, unless within ten (10) calendar days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.5(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(ii) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or other similar circumstancesincurred by Indemnitee up to the date of said notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than ten (10) calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of thirty (30) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the publicly announced prime rate then in effect of The Chase Manhattan Bank) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 7.38.5 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Nuclear Generation Conveyance Agreement (Dqe Inc), Nuclear Generation Conveyance Agreement (Duquesne Light Co)
Defense of Claims. If The Indemnifying Party may elect to assume and control the defense of any legal proceedings shall be instituted Loss Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if (a) the Indemnifying Party provides reasonable evidence to the Indemnified Party of its financial ability to satisfy such indemnification obligation; (b) the Loss Claim does not seek to impose any liability or any claim is asserted by any third party in respect of which any party hereto may have an obligation on the Indemnified Party other than for money damages; and (c) the Loss Claim does not relate to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party"’s relationship with its customers or employees. If such conditions are satisfied and the Indemnifying Party elects to assume and control the defense of a Loss Claim, then (i) shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from be liable for any liability that it settlement of such Loss Claim effected without its prior written consent; (ii) the Indemnifying Party may have to settle such Loss Claim without the consent of the Indemnified Party; and (iii) the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option may employ separate counsel and expense, to participate in the defense of such proceeding or claimthereof, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled responsible for the fees and expenses of such counsel unless the Indemnifying Party has failed to participate in adequately assume the defense of such claim and Loss Claim or to employ counsel at its own expense to assist in with respect thereto. If such conditions are not satisfied, the handling Indemnified Party may assume and control the defense of such claimthe Loss Claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that may not settle any such participation is appropriate in light Loss Claim without the consent of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall which consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control unreasonably withheld (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Claims resulting from a settlement effected in connection with the defense thereof other than reasonable costs violation of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredclause).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Tyler Technologies Inc), Stock Purchase Agreement (Rapid Link Inc)
Defense of Claims. (a) If any legal proceedings claim (the “Claim”) is filed or initiated against any party entitled to the benefit of indemnity hereunder (the “Indemnified Party”), written notice thereof specifying in detail the source of the Claim or potential Claim under Section 6.2, Section 6.3 or Section 6.4, as the case may be, shall be instituted given to the indemnifying party (the “Indemnifying Party”) promptly (and in any event within ten (10) days after notice of the Claim); provided, however, that the failure of any Indemnified Party to give timely notice shall not affect rights to indemnification hereunder except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. After such notice, the Indemnifying Party shall be entitled, if it so elects, to take control of the defense and investigation of such Claim and to employ and engage attorneys of its own choice to handle and defend the same, such attorneys to be reasonably satisfactory to the Indemnified Party, at the Indemnifying Party’s cost, risk and expense and to compromise or any claim is asserted by any settle such Claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party; provided such consent shall not be unreasonably withheld and provided, further, that if the sole settlement relief payable to a third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity Claim is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify monetary damages that are paid in full by the Indemnifying Party shall not relieve it from any liability that it may have and such settlement includes an unconditional term (subject only to the foregoing payment being concurrently made) releasing the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at and its option and expense, to participate affiliates from all liability in the defense respect of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseClaim, the Indemnifying Party may assume settle such control at its expense through counsel reasonably satisfactory to such claim without the consent of the Indemnified Party.
(b) If the Indemnifying Party fails to assume the defense of such Claim within thirty (30) days after receipt of notice thereof pursuant to this Section 6.5, and the Indemnified Party against which such Claim has been filed or initiated will fully cooperate as reasonably requested by (upon delivering notice to such effect to the Indemnifying Party in Party) have the defense right to undertake, at the Indemnifying Party’s cost and expense, to the extent otherwise provided herein, the defense, compromise or settlement of such matterClaim on behalf of and for the account and risk of the Indemnifying Party; provided, however, that:that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement and will consult with, when appropriate, and consider any reasonable advice from, the Indemnifying Party of any such defense, compromise or settlement. To the extent otherwise provided herein, the Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 6.5 and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any Damages by reason of such settlement or judgment.
(ac) If the Indemnifying Party elects to defend any Claim under this Section 6.5, then the Indemnified Party shall be entitled to participate in the (but not control) such defense of such claim and to employ with counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available reasonably acceptable to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the at such Indemnified Party’s sole cost and expense, provided, that in any Claim where both an Indemnified Party and an Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing are named as defendants, if counsel to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement reasonably conclude in writing that there is a reasonably apparent conflict of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against interest between the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, then the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate select one law firm reasonably acceptable to the Indemnifying Party at the cost and expense of the Indemnifying Party, and ’s expense as separate counsel on behalf of the Indemnified Parties. If the Indemnifying Party will promptly reimburse elects to defend, compromise or settle such Claim, the Indemnified Party therefore shall cooperate in accordance with the defense against, or compromise or settlement of, such Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the execution of appropriate confidentiality agreements.
(d) Any Indemnified Party seeking indemnification for any Claim or potential Claim arising from a claim asserted by any party to this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 Agreement against the Indemnifying Party shall be made by periodic payments during give prompt written notice to the course Indemnifying Party specifying in detail the source of the investigations Claim or defensepotential Claim under Section 6.2, Section 6.3 or Section 6.4, as and when bills are received or expenses incurredthe case may be.
Appears in 2 contracts
Samples: Loan Purchase Agreement, Loan Purchase Agreement (BankGuam Holding Co)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third Each party in respect of which any party hereto may have an obligation entitled to indemnify another party, the party asserting such right to indemnity indemnification under this ----------------- Section 7 (the "Indemnified Party") shall give notice to the party from whom indemnity is sought required to provide indemnification (the "Indemnifying Party") written notice thereof within 30 dayspromptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, but any failure to so notify and shall permit the Indemnifying Party shall not relieve it from to assume the defense of any liability such claim or any litigation resulting therefrom, provided that it may have to the Indemnified Party other than to the extent counsel for the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party Party, who shall have the right, at its option and expense, to participate in conduct the defense of such proceeding claim or claimlitigation, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to be approved by the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Partywhose approval shall not unreasonably be withheld), and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to may participate in the such defense of at such claim and to employ counsel at its own expense to assist in the handling of such claimparty's expense; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party -------- ------- shall pay such expense if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval representation of the Indemnified Party before entering into by counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any settlement other party represented by such counsel in such proceeding, and provided further that the -------- ------- failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 7 unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or ceasing to defend against such claim (litigation shall, except with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall the consent of each Indemnified Party, consent to the entry of any judgment or enter into any settlement that which does not include as an unconditional term thereof the giving by each the claimant or plaintiff to each such Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the claim or litigation. No Indemnifying Party shall be liable for such Legal Expenses if the required to indemnify any Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available with respect to the any settlement entered into without such Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred's prior consent.
Appears in 2 contracts
Samples: Rights Agreement (Digital Insight Corp), Rights Agreement (Digital Insight Corp)
Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third entity that is not a party in respect to this Agreement or an Affiliate of which any such a party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the a "Indemnified PartyThird Party Claim") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 daysagainst such Indemnitee, but any failure with respect to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the which an Indemnifying Party is actually prejudiced thereby. The obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party shall have the rightreasonably prompt written notice thereof, at its option and expense, to participate but in the defense any event not later than ten (10) calendar days after receipt of notice of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimClaim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article 12 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof with counsel reasonably satisfactory to the Indemnitee. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that such participation is appropriate may be available to the Indemnitee that are in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such for the fees and disbursements of more than one counsel for all Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Parties in connection with any one proceeding or any similar or related proceedings arising from the defense same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof other than reasonable costs the release of investigation the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of liaison counsel the Indemnifying Party's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnified Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party; provided, however, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be liable for such Legal Expenses if limited to the Indemnified Party determines in good faith lesser of (A) the amount of the settlement offer that the incurrence Indemnitee declined to accept plus the Losses of the same is appropriate in light Indemnitee relating to such Third Party Claim through the date of defenses its rejection of the settlement offer or (B) the aggregate Losses of the Indemnitee with respect to such claim.
(b) Any claim by an Indemnitee on account of an Indemnifiable Loss that does not available to result from a Third Party Claim (a "Direct Claim") will be asserted by giving the Indemnifying PartyParty reasonably prompt written notice thereof, conflicts but in any event not later than thirty (30) calendar days after an Executive Officer of interest or other similar circumstancesthe Indemnitee becomes actually aware of the incurrence thereof, and the Indemnifying Party will have a period of thirty (30) calendar days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.3thirty (30) calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore in accordance with Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Section 7.3. The reimbursement Article 12.
(c) If after the making of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during any Indemnification Payment the course amount of the investigations Indemnifiable Loss to which such payment relates is reduced by recovery, settlement or defenseotherwise under any insurance coverage, as or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction (less any costs, expenses, premiums or taxes incurred in connection therewith) will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any Indemnification Payment, the Indemnifying Party will, to the extent of such Indemnification Payment, be subrogated to all rights of the Indemnitee against any third party that is not an Affiliate of the Indemnitee in respect of the Indemnifiable Loss to which the Indemnification Payment relates; provided that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss, and when bills are received (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, all claims of the Indemnifying Party against any such third party on account of said Indemnification Payment will be subrogated and subordinated in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or expenses incurredeffect of any other provision of this Article 12, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Citizens Utilities Co), Asset Purchase Agreement (Citizens Utilities Co)
Defense of Claims. If (a) The Indemnifying Party may elect to assume and control the defense of any legal proceedings shall be instituted or any claim is asserted by any third party in respect Claim, including the employment of which any party hereto may have an counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if: (i) the Indemnifying Party acknowledges its obligation to indemnify another party, the party asserting Indemnified Party for any Losses resulting from such right Claim; (ii) the Claim does not seek to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but impose any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to Liability on the Indemnified Party other than money damages; and (iii) the Claim does not relate to the extent Indemnified Party's relationship with any customer or employee.
(b) If the conditions of Section 6.4(a) are satisfied and the Indemnifying Party is actually prejudiced thereby. The elects to assume and control the defense of a Claim, then: (i) the Indemnifying Party shall have will not be liable for any settlement of such Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the right, at its option Indemnifying Party may settle such Claim without the consent of the Indemnified Party; and expense, to (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, but the Indemnified Party will be responsible for the fees and expenses of such proceeding counsel unless: (A) the Indemnifying Party has failed to adequately assume and actively conduct the defense of such Claim or claim, but not to control employ counsel with respect thereto; or (B) in the defense, negotiation or settlement thereof, which control shall at all times rest with reasonable opinion of the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts a conflict of interest or other similar circumstances;
(b) exists between the Indemnifying Party shall obtain the prior written approval interests of the Indemnified Party before entering into any settlement and the Indemnifying Party that requires representation by separate counsel, in which case the fees and expenses of such claim separate counsel will be paid by the Indemnifying Party.
(c) If the conditions of Section 6.4(a) are not satisfied, the Indemnified Party may assume the exclusive right to defend, compromise, or ceasing to defend against settle such claim Claim, but the Indemnifying Party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (with such approval which may not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.
Appears in 2 contracts
Samples: Acquisition Agreement (Trey Industries Inc), Acquisition Agreement (Conversion Services International Inc)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect After receipt of which any party hereto may have an obligation a Claim Notice relating to indemnify another partya Third Party Claim, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall be entitled, if it so elects by written notice to the Indemnified Party, at its own cost, risk and expense, (a) to take control of the defense and investigation of such Third Party Claim and (b) to employ and engage attorneys of its own choice that are reasonably satisfactory to the Indemnified Party to handle and defend the same if: (i) the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party for any Damages resulting from such Claim; and (ii) the Claim does not relieve it from seek to impose any liability that it may have to Liability on the Indemnified Party other than to money damages. If the extent conditions set forth in the previous sentence are not satisfied or, if satisfied, the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, fails to participate in so assume the defense of such proceeding or claimThird Party Claim within twenty (20) Business Days after receipt of the Claim Notice, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder against which such Third Party Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake and control, at the Indemnifying Party’s cost and expense, the defense and investigation, of such Claim. The Indemnified Party shall, with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Partyany Third Party Claim, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available promptly deliver to the Indemnifying Party, conflicts but in any event within twenty (20) Business Days after the Indemnified Party’s receipt thereof, copies of interest all notices, court papers and material correspondence received by the Indemnified Party relating to the Third Party Claim. The party that assumes the defense and investigation of the Third Party Claim in accordance with this Agreement shall keep the other party reasonably informed of the progress of any such defense, compromise or other similar circumstances;
settlement. Notwithstanding the foregoing, the Indemnified Party (bor, if the Indemnified Party controls the defense, the Indemnifying Party) may participate in such defense at its own expense. If however (i) the Indemnifying Party shall obtain has failed to assume and actively conduct the prior written approval defense of such Claim or to employ counsel with respect thereto; or (ii) in the reasonable opinion of the Indemnified Party, a conflict of interest exists between the interests of the Indemnified Party before entering into any settlement and the Indemnifying Party that requires representation by separate counsel, then the Indemnified Party may employ separate counsel and the fees and expenses of such claim separate counsel will be paid by the Indemnifying Party. The Indemnified Party shall provide, at the Indemnifying Party’s cost and expense, such information and documentation that is not subject to the attorney-client privilege or ceasing other applicable privilege or under court seal as the Indemnifying Party may reasonably request in order to evaluate its indemnification obligations hereunder in order to determine whether to assume the defense of such Third Party Claim. If the Indemnifying Party chooses to defend against any Third Party Claim, all the parties hereto shall reasonably cooperate in the defense or prosecution of such claim Third Party Claim at the Indemnifying Party’s cost and expense. Such cooperation shall include the retention and (with upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such approval Third Party Claim, and making relevant employees available on a mutually convenient basis. Whether or not to be unreasonably withheld);
(c) no the Indemnifying Party shall have assumed the defense of a Third Party Claim, no Indemnified Party shall admit any liability with respect to, consent to the entry of any judgment judgment, or enter into settle, compromise or discharge, any settlement that Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed in the circumstance where the Indemnifying Party has not elected to assume (or does not include as an unconditional term thereof have the giving by each claimant or plaintiff right to each assume) the defense of such Third Party Claim); provided, that the Indemnified Party will not be required to obtain any consent of a release from all liability the Indemnifying Party to any such admission, consent, settlement, compromise or discharge of such Claim (and will not prejudice its right to be indemnified with respect to such Claim) if the Indemnifying Party is disputing its obligation or is asserting that it has no obligation to indemnify the Indemnified Party in respect of such claim; and
(d) the Indemnifying Party shall Claim and is not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any defending such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredClaim.
Appears in 2 contracts
Samples: Stock Purchase Agreement (infoGROUP Inc.), Stock Purchase Agreement (ICF International, Inc.)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the The Indemnifying Party shall not relieve it from may elect to assume and control the defense of any liability that it may have Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party other than to and the extent payment of expenses related thereto, if (a) the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at acknowledges its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability obligation to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume for any Losses resulting from such control at its expense through counsel reasonably satisfactory to such Indemnified Party, Claim and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party provides reasonable evidence to the Indemnified Party of its election financial ability to satisfy such obligation, and (b) the Claim does not seek to impose any material liability or obligation on the Indemnified Party other than for money damages. If such conditions are satisfied and the Indemnifying Party elects to assume and control of the defense of any such actiona Claim, then (i) the Indemnifying Party shall will not be liable to for any settlement of such Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the Indemnifying Party may not settle such Claim without the consent of the Indemnified Party hereunder for any Legal Expenses subsequently incurred by (not to be unreasonably withheld) unless such Indemnified Party in connection with the defense thereof other than reasonable costs settlement includes a full and unconditional release of investigation and of liaison counsel for the Indemnified Party; providedand (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, however, that but the Indemnified Party will be responsible for the fees and expenses of such counsel unless (A) the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available has failed to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, Claim or to employ counsel with respect thereto or (B) a conflict of interest exists between the interests of the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse that requires representation by separate counsel, in which case the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs fees and expenses required of such separate counsel will be paid by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills Indemnifying Party. If such conditions are received or expenses incurred.not
Appears in 2 contracts
Samples: Securities Purchase Agreement (Hearst Communications Inc), Securities Purchase Agreement (Hearst Communications Inc)
Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third entity that is not a party in respect to this Agreement or an Affiliate of which any such a party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the a "Indemnified PartyThird Party Claim") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 daysagainst such Indemnitee, but any failure with respect to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the which an Indemnifying Party is actually prejudiced thereby. The obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party shall have the rightreasonably prompt written notice thereof, at its option and expense, to participate but in the defense any event not later than ten (10) calendar days after receipt of notice of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimClaim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article 12 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof with counsel reasonably satisfactory to the Indemnitee. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that such participation is appropriate may be available to the Indemnitee that are in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such for the fees and disbursements of more than one counsel for all Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Parties in connection with any one proceeding or any similar or related proceedings arising from the defense same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof other than reasonable costs the release of investigation the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of liaison counsel the Indemnifying Party's willing-ness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnified Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party; provided, however, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be liable for such Legal Expenses if limited to the Indemnified Party determines in good faith lesser of (A) the amount of the settlement offer that the incurrence Indemnitee declined to accept plus the Losses of the same is appropriate in light Indemnitee relating to such Third Party Claim through the date of defenses its rejection of the settlement offer or (B) the aggregate Losses of the Indemnitee with respect to such claim.
(b) Any claim by an Indemnitee on account of an Indemnifiable Loss that does not available to result from a Third Party Claim (a "Direct Claim") will be asserted by giving the Indemnifying PartyParty reasonably prompt written notice thereof, conflicts but in any event not later than thirty (30) calendar days after the receipt of interest or other similar circumstancesnotice thereof, and the Indemnifying Party will have a period of thirty (30) calendar days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.3thirty (30) calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore in accordance with Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Section 7.3. The reimbursement Article 12.
(c) If after the making of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during any Indemnification Payment the course amount of the investigations Indemnifiable Loss to which such payment relates is reduced by recovery, settlement or defenseotherwise under any insurance coverage, as or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction (less any costs, expenses, premiums or taxes incurred in connection therewith) will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any Indemnification Payment, the Indemnifying Party will, to the extent of such Indemnification Payment, be subrogated to all rights of the Indemnitee against any third party that is not an Affiliate of the Indemnitee in respect of the Indemnifiable Loss to which the Indemnification Payment relates; provided that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss, and when bills are received (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, all claims of the Indemnifying Party against any such third party on account of said Indemnification Payment will be subrogated and subordinated in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or expenses incurredeffect of any other provision of this Article 12, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Centurytel Inc), Asset Purchase Agreement (Centurytel Inc)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the The Indemnifying Party shall not relieve it from may elect to assume and control the defense of any liability that it may have Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party other than to and the extent payment of expenses related thereto, if (a) the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at acknowledges its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability obligation to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume for any Losses resulting from such control at its expense through counsel reasonably satisfactory to such Indemnified Party, third party Claim and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party provides reasonable evidence to the Indemnified Party of its election financial ability to satisfy such obligation; (b) the Claim does not seek to impose any liability or obligation on the Indemnified Party other than for money damages; and (c) the Claim does not relate to the Indemnified Party's relationship with its customers or employees. If such conditions are satisfied and the Indemnifying Party elects to assume and control of the defense of any such actiona Claim, then (i) the Indemnifying Party shall will not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by settlement of such Indemnified Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the Indemnifying Party in connection with may settle such Claim without the defense thereof other than reasonable costs consent of investigation and of liaison counsel for the Indemnified Party; providedand (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, however, that but the Indemnified Party will be responsible for the fees and expenses of such counsel unless (A) the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available has failed to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not adequately assume control of the defense of such claim as provided Claim or to employ counsel with respect thereto or (B) a conflict of interest exists between the interests of the Indemnified Party and the Indemnifying Party that requires representation by separate counsel, in this Section 7.3which case the fees and expenses of such separate counsel will be paid by the Indemnifying Party. If such conditions are not satisfied, the Indemnified Party shall have may assume and control the right to defend such claim in such manner as it may deem appropriate defense of the Claim at the cost and expense of the Indemnifying Party, 's cost and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredexpense.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Roller Bearing Co of America Inc), Asset Purchase Agreement (Roller Bearing Co of America Inc)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party"a) shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the The Indemnifying Party shall may elect to assume and control the defense of any Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if: (i) the Claim does not relieve it from seek to impose any liability that it may have to Liability on the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claimmoney damages; and (ii) furnishes satisfactory evidence the Claim does not relate to the Indemnified Party's relationship with any customer or employee.
(b) If the conditions of Section 6.5(a) are satisfied and the Indemnifying Party elects to assume and control the defense of a Claim, then: (i) the Indemnifying Party will not be liable for any settlement of such Claim effected without its financial ability consent, which consent shall be in the Indemnifying Party's sole and absolute discretion if the Indemnifying Party is solely liable for all Losses in connection with such Claim, and which consent shall not be unreasonably withheld if both the Indemnifying Party and the Indemnified Party are liable for Losses in connection with such Claim; (ii) the Indemnifying Party may settle such Claim without the consent of the Indemnified Party if the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume for any Losses resulting from such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of)Claim, and the Indemnified Party shall be entitled to have sole control over, not unreasonably withhold its consent if both the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against Indemnifying Party and the Indemnified Party whichare liable for Losses in connection with such claim; and (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, if successful, could materially interfere provided that the Indemnified Party will be responsible for the fees and expenses of such counsel unless: (A) the Indemnifying Party has failed to adequately assume and actively conduct the defense of such Claim or to employ counsel with respect thereto; or (B) in the business, operations, assets, condition (financial or otherwise) or prospects reasonable opinion of the Indemnified Party. After written notice , a conflict of interest exists between the interests of the Indemnified Party and the Indemnifying Party that requires representation by separate counsel, in which case the fees and expenses of such separate counsel will be paid by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. .
(c) If the Indemnifying Party does not assume the control and defense of any Claim, the Indemnified Party may assume the exclusive right to defend, compromise or settle such Claim; provided (i) the Indemnifying Party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld) and (ii) the Indemnifying Party may employ separate counsel and participate in the defense thereof, but the Indemnifying Party will be responsible for the fees and expenses of such counsel.
(d) The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnified Party or the Indemnifying Party, as the case may be, reasonably apprised of the status of the defense of such claim as provided in any Claim the defense of which it is maintaining under this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party6.5, and each shall reasonably cooperate in good faith with the Indemnifying Party will promptly reimburse other with respect to the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement defense of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredany Claim.
Appears in 2 contracts
Samples: Partnership Interest Purchase Agreement (Vsource Inc), Partnership Interest Purchase Agreement (Vsource Inc)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have has acknowledged in writing to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Party’s responsibility for defending such claim, the Indemnifying Party shall have the rightright to defend, at its option sole cost and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereofclaim by all appropriate proceedings, which control proceedings shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested be prosecuted diligently by the Indemnifying Party in to a final conclusion or settled at the defense or settlement discretion of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimIndemnifying Party; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses may not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any compromise or settlement that does not include unless (a) such compromise or settlement includes as an unconditional term thereof thereof, the giving by each claimant or plaintiff to each the Indemnified Party of a release from all liability in respect of such claim; and
and (db) the Indemnifying Indemnified Party consents to such compromise or settlement, which consent shall not be entitled to control withheld, conditioned or delayed unless such compromise or settlement involves (but shall be entitled to participate at its own expense in i) any admission of legal wrongdoing by the defense of)Indemnified Party, and (ii) any payment by the Indemnified Party shall be entitled to have sole control overthat is not indemnified hereunder, or (iii) the defense or settlement imposition of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by If the Indemnifying Party to the Indemnified Party of its election does not elect to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses a claim or if the Indemnified Party determines in a good faith that the incurrence of the same and diligent defense is appropriate in light of defenses not available being or ceases to be materially conducted by the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, then the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate right, at the cost and expense of the Indemnifying Party, and upon at least ten (10) Business Days’ prior written notice to the Indemnifying Party will promptly reimburse of its intent to do so, to undertake the defense of such claim for the account of the Indemnifying Party (with counsel reasonably selected by the Indemnified Party therefore in accordance and approved by the Indemnifying Party, such approval not unreasonably withheld, conditioned, or delayed); provided that the Indemnified Party shall keep the Indemnifying Party apprised of all material developments with this Section 7.3respect to such claim and promptly provide the Indemnifying Party with copies of all correspondence and documents exchanged by the Indemnified Party and the opposing party to such litigation. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during Indemnified Party may not compromise or settle such litigation without the course prior written consent of the investigations Indemnifying Party, such consent not to be unreasonably withheld, conditioned, or defense, as and when bills are received or expenses incurreddelayed.
Appears in 2 contracts
Samples: License Agreement (Kiniksa Pharmaceuticals, Ltd.), License Agreement (Kiniksa Pharmaceuticals, Ltd.)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a Party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim"), including an information document request or a notice of proposed disallowance issued by the IRS relating to a matter covered by Section 5.7, with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than twenty (20) days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control Third Party Claim shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the defense at such Indemnitee's own expense. If an Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled elects not to participate in assume the defense of any Third Party Claim, the Indemnitee may compromise or settle such claim and Third Party Claim over the objection of the Indemnifying Party, which settlement or compromise shall conclusively establish the Indemnifying Party's Liability pursuant to employ counsel at its own expense to assist in the handling of such claimthis Agreement; provided, however, that the employment of such counsel shall be at the expense of Indemnitee provides written notice to the Indemnifying Party if of its intent to settle and such notice reasonably describes the Indemnified Party determines in good faith that terms of such participation is appropriate in light of defenses not available settlement at least ten (10) Business Days prior to entering into any settlement.
(1) If, within twenty (20) days after an Indemnitee provides written notice to the Indemnifying PartyParty of any Third Party Claim, conflicts of interest or other similar circumstances;
(b) the Indemnitee receives written notice from the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of that such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election has elected to assume control of the defense of any such actionThird Party Claim as provided in Section 8.3(a), the Indemnifying Party shall will not be liable to such Indemnified Party hereunder for any Legal Expenses legal expenses subsequently incurred by such Indemnified Party the Indemnitee in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Partythereof; provided, however, that if the Indemnifying Party shall fail to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense and the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(2) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, which consent shall not be unreasonably withheld or delayed, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to Liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to Liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within twenty (20) days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum Liability of interest or other similar circumstancesthe Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than twenty (20) days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of twenty (20) days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such twenty (20) day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) The amount of any Indemnifiable Loss shall be reduced to the extent that the Indemnitee receives any insurance proceeds with respect to an Indemnifiable Loss. If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest accrued thereon at the Interest Rate from and including the date of payment thereof to but excluding the date or repayment) shall promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying Party shall, to the extent of such indemnity payment, be subrogated to all rights of the defense Indemnitee against any third party in respect of such claim the Indemnifiable Loss to which the indemnity payment relates.
(e) A failure to give timely notice as provided in this Section 7.38.3 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right that was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Asset Sale Agreement (CMS Energy Corp), Asset Sale Agreement (CMS Energy Corp)
Defense of Claims. If the Notice of Claim involves a Legal Action (excluding, without limitation, any legal proceedings audit, action, or proceeding relating to Taxes, which shall be governed by Section 7.5(c)) instituted or any claim is asserted by any third party in respect of for which the Liability or the costs or expenses are Losses (any such third party hereto may have an obligation Legal Action or proceeding being referred to indemnify another partyas a “Claim”), the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party right (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own sole cost and expense reasonably acceptable to assist the Indemnified Party to defend any such Claim asserted against the Indemnified Party, (ii) to control and conduct any proceedings or negotiations in connection therewith and necessary or appropriate to defend the handling of Indemnified Party and (iii) to take all other steps or proceedings to settle or defend any such claimClaims; provided, however, that the employment Indemnifying Party shall only have the rights set forth in Section 10.4(b)(i) through (iii) if: (A) the defense of such Claim by the Indemnifying Party will not, in the good faith reasonable judgment of the Indemnified Party, have a material adverse effect on the Indemnified Party; (B) the Indemnifying Party has sufficient financial resources, in the good faith reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that is reasonably likely to result; (C) the amount of the potential Losses of the Indemnified Party related to such Claim are not estimated to exceed the indemnification limits in Section 10.5; (D) the Claim solely seeks (and continues to seek) monetary damages; and (E) the Claim does not include criminal charges (the conditions set forth in clauses (A) through (E) are, collectively, the “Litigation Conditions”). The Indemnifying Party shall notify the Indemnified Party in writing, as promptly as possible after receipt of the Notice of Claim (but in any case within thirty (30) days of receipt by the Indemnifying Party of a Notice of Claim or such earlier time necessary to reasonably allow a timely response to the Claim (the “Indemnity Notice Period”)) of its election to defend any such Claim. If the Indemnifying Party assumes the defense of such Claim, then (i) the Indemnifying Party shall be obligated to indemnify the Indemnified Party with respect to such Claim, (ii) the Indemnifying Party shall actively and diligently conduct the defense, and (iii) the Indemnified Party shall have the right to participate in such defense (including with counsel of its choice) and receive copies of all notices, pleadings, and other submissions, in each case at its own expense, and the Indemnifying Party shall reasonably cooperate with the Indemnified Party in connection with such participation. The fees and disbursements of such counsel shall be at the expense of the Indemnifying Party Indemnified Party; provided, that if in the reasonable opinion of counsel to the Indemnified Party, (xxiv) there are legal defenses available to an Indemnified Party determines in good faith that such participation is appropriate in light of defenses not are different from or additional to those available to the Indemnifying Party, conflicts ; (xxv) any of the Litigation Conditions ceases to be met; or (xxvi) there exists a conflict of interest or other similar circumstances;
(b) between the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall that cannot be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; providedwaived, however, that the Indemnifying Party shall be liable for such Legal Expenses if the reasonable fees and expenses of one (1) counsel to the Indemnified Party. If the Indemnifying Party does not deliver to the Indemnified Party determines in good faith written notice within the Indemnity Notice Period that the incurrence Indemnifying Party will assume the defense of any such Claim resulting therefrom, then the same is appropriate Indemnifying Party will no longer have the right to assume the defense of such Claim, the Indemnified Party may defend against any such Claim in light of defenses not available such manner as it may deem reasonably appropriate, and the Indemnifying Party will remain responsible for any Losses that are ultimately determined to be owed under this Article 10 subject to the Indemnifying Party, conflicts of interest or other similar circumstanceslimitations set forth in this Agreement. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3the immediately preceding sentence, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and keep the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, reasonably informed as and when bills are received or expenses incurredto all material matters concerning such Claim.
Appears in 2 contracts
Samples: Merger Agreement (Applied UV, Inc.), Merger Agreement (Applied UV, Inc.)
Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (a “Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, and the Indemnitee will cooperate in good faith in such defense at such Indemnitee’s own expense.
(b) If within ten (10) days after an Indemnitee provides written notice to the Indemnifying Party of any Third Party Claim the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in the last sentence of Section 9.3(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable expenses thereof. If there is a conflict of interests between Indemnitee and Indemnifying Party, Indemnitee may elect to be represented by its own counsel at Indemnifying Party’s expense. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party may accept and agree to such offer in its sole discretion.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable.
(d) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other Person, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the U.S. prime rate then in effect published in the Wall Street Journal, Eastern Edition), will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying Party will, to the extent of such indemnity payment, be subrogated to all rights of the Indemnitee against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights, and otherwise cooperate in the prosecution of such claims at the direction of the Indemnifying Party. Nothing in this Section 9.3(d) shall be construed to require any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity obtain or maintain any insurance coverage.
(the "Indemnified Party"e) shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any A failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written give timely notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.39.3 will not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right party that was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Allegheny Energy, Inc), Asset Purchase Agreement (Allegheny Energy, Inc)
Defense of Claims. If any legal proceedings shall be instituted or Each party entitled to indemnification under this Article VIII (the “Indemnified Party”) agrees to notify the party required to provide indemnification (the “Indemnifying Party”) with reasonable promptness of any claim is asserted by any third party against it in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party may be liable under this Agreement, which notification shall not relieve it from any liability that it may have to be accompanied by a written statement setting forth the basis of such claim and the manner of calculation thereof. The failure of the Indemnified Party other than to promptly give notice shall not preclude such Indemnified Party from obtaining indemnification under this Article VIII, except to the extent extent, and only to the extent, that the Indemnifying Party is actually prejudiced therebyParty’s failure materially prejudices the rights or increases the liabilities and obligations of the Indemnifying Party. The Indemnifying Party shall have the right, at its option and expenseelection, to participate in the defense of defend or compromise any such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall claim at all times rest its own expense with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence counsel of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matterchoice; provided, however, that:
: (a) such counsel shall have been approved by the Indemnified Party prior to engagement, which approval shall not be unreasonably withheld or delayed; (b) the Indemnified Party shall be entitled to may participate in the defense of such claim defense, if it so chooses with its own counsel and to employ counsel at its own expense to assist in the handling of expense; and (c) any such claim; provided, however, that the employment of such counsel defense or compromise shall be at conducted in a manner which is reasonable and not contrary to the expense of Indemnified Party’s interest. In the event the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses does not available undertake to the Indemnifying Partydefend or compromise, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to promptly notify the Indemnified Party of its election intention not to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right undertake to defend such claim in such manner as it may deem appropriate at or compromise the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredclaim.
Appears in 2 contracts
Samples: Merger Agreement (Healthtech Solutions, Inc./Ut), Merger Agreement (NYBD Holding, Inc.)
Defense of Claims. If any legal proceedings shall be instituted Any Excalibur Indemnitee or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity GRMG Indemnitee (the "Indemnified PartyINDEMNIFIED PARTY") seeking indemnification under this Agreement shall give to the party from whom indemnity is sought obligated to provide indemnification to such Indemnified Party (the "Indemnifying PartyINDEMNITOR") written a notice (a "CLAIM NOTICE") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly upon learning of the existence of such claim. Upon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, such Indemnitor may assume the defense thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have with counsel reasonably satisfactory to the Indemnified Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other than to expenses related thereto; and the extent Indemnified Party shall cooperate in the Indemnifying defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. If the Indemnitor does not assume the defense thereof within ten days of its receipt of the Claim Notice, the Indemnitor shall similarly cooperate with the Indemnified Party is actually prejudiced therebyin such defense or prosecution. The Indemnifying Indemnified Party shall have the right, at its option and expense, right to participate in the defense or prosecution of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder any lawsuit with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify which the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in Indemnitor has assumed the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in counsel therein, but the handling of such claim; provided, however, that the employment fees and expenses of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
unless (bi) the Indemnifying Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party shall obtain the prior written approval to take charge of the Indemnified Party before entering into any settlement defense of such claim or ceasing to defend against action, (ii) such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement reasonably concluded that there exists a significant conflict of any claim interest with respect to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects conduct of the such Indemnified Party. After written notice 's defense by the Indemnifying Party Indemnitor, or (iii) the Indemnitor fails to provide reasonable insurance to the Indemnified Party of its election financial capacity to assume control defend such action and provide indemnification with respect to such action, in any of which events such reasonable fees and expenses shall be borne by the Indemnitor and the Indemnitor shall not have the right to direct the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs action on behalf of investigation and of liaison counsel for the Indemnified Party; provided. The Indemnitor shall have the right, howeverin its sole discretion, to settle any claim (a) which is solely for monetary damages for which indemnification has been sought and is available hereunder, and (b) where there is no finding or admission of any violation of any legal requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, provided that the Indemnifying Party Indemnitor shall be liable for such Legal Expenses if not agree to the settlement of any claim which constitutes the subject of a Claim Notice which settlement in the reasonable opinion of the Indemnified Party determines in good faith that would have a material adverse continuing effect on the incurrence business of the same is appropriate in light Indemnified Party without the prior written consent of defenses not available the Indemnified Party. The Indemnified Party shall give written notice to the Indemnifying PartyIndemnitor of any proposed settlement of any suit, conflicts of interest or other similar circumstances. If which settlement the Indemnifying Party does not assume control of Indemnitor may, if it shall have assumed the defense of the suit, reject in its reasonable judgment within 10 days of receipt of such claim as provided in this Section 7.3, notice. Notwithstanding the foregoing the Indemnified Party shall have the right to defend pay or settle any suit for which indemnification has been sought and is available hereunder, provided that, if the defense of such claim in such manner as it may deem appropriate at shall have been assumed by the cost and expense of the Indemnifying PartyIndemnitor, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall automatically be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurreddeemed to have waived any right to indemnification hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Excalibur Industries Inc), Merger Agreement (Global Realty Management Group Inc)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any person who is not a party to this Agreement or any claim Affiliate of a party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted to be sought from an Indemnifying Party, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel, and the Indemnitee will cooperate in good faith in such defense at such Indemnitee's own expense.
(b) If within ten (10) days after an Indemnitee provides written notice to the Indemnifying Party of any Third Party Claim, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in the last sentence of Section 8.02(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable expenses thereof. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder, the Indemnifying Party may accept and agree to such offer, and shall give written notice to the Indemnitee to that effect.
(c) [Intentionally omitted.]
(d) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the prime rate then in effect of Fleet Bank, N.A. or its successor), will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying Party will, to the extent of such indemnity payment, be subrogated to all rights of the Indemnitee against any third party in respect of the Indemnifiable Loss to which any party hereto may have an obligation to indemnify another partythe indemnity payment relates; PROVIDED, the party asserting such right to indemnity HOWEVER, that (the "Indemnified Party"i) shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at will then be in compliance with its option and expense, to participate obligations under this Agreement in the defense respect of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; Indemnifiable Loss and (ii) furnishes satisfactory evidence until the Indemnitee recovers full payment of its financial ability to indemnify the Indemnified PartyIndemnifiable Loss, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, any and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense all claims of the Indemnifying Party if the Indemnified Party determines against any such third party on account of said indemnity payment is hereby made expressly subordinated and subjected in good faith that such participation is appropriate in light right of defenses not available payment to the Indemnitee's rights against such third party. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party, conflicts of interest Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. Nothing in this Section 8.02(d) shall be construed to require any party hereto to obtain or other similar circumstances;maintain any insurance coverage.
(be) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing Subject to defend against such claim (with such approval not Section 8.01(a) and 8.01(b) hereof, a failure to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written give timely notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.38.02 will not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right party which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Marketing Services Agreement (First Marblehead Corp), Marketing Services Agreement (First Marblehead Corp)
Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any claim, action, or proceeding made or brought by any third Person who is not a party in to this Agreement or an Affiliate of a party to this Agreement (a “Third Party Claim”) with respect of to which any party hereto may have indemnification is to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify event not later than twenty (20) days after the Indemnifying Indemnitee’s receipt of notice of such Third Party Claim. Such notice shall not relieve it from any liability describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such proceeding or claimIndemnifying Party’s own expense and by such Indemnifying Party’s own counsel; provided, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party that (i) admits in writing its liability the Third Party Claim seeks (and continues to the Indemnified Party hereunder with respect to such proceeding or claim; and seek) only monetary damages, (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of by the Indemnifying Party if will not, in the Indemnified Party determines in good faith that reasonable judgment of the Indemnitee, create a conflict or potential conflict of interest between such participation is appropriate in light of defenses not available to parties, and (iii) the Indemnifying Party, conflicts in the foregoing written notice, expressly acknowledges its unqualified obligation to indemnify and hold harmless the Indemnitee for the full amount of interest or other similar circumstances;any Indemnifiable Losses resulting from such Third Party Claim. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee’s own expense.
(b) If within ten (10) days after an Indemnitee provides written notice to the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof Third Party Claim the giving by each claimant or plaintiff to each Indemnified Party of a release Indemnitee receives written notice from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the that such Indemnifying Party to the Indemnified Party of its election has elected to assume control of the defense of any such actionThird Party Claim as provided in the last sentence of Section 9.3(a), the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses legal expenses subsequently incurred by such Indemnified Party the Indemnitee in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Partythereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps (or such shorter time as required by any proceeding), the Indemnitee may assume its own defense, and the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof. Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to Liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to Liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying PartyParty as to such Third Party Claim shall be the amount of such firm offer, conflicts plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of interest or other similar circumstancessuch notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, and the Indemnifying Party shall have a period of thirty (30) days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee shall be free to seek enforcement of its rights to indemnification under this Agreement.
(d) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the prime rate then in effect of Citibank N.A.), shall promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying Party shall, to the extent of such indemnity payment, be subrogated to all rights of the defense Indemnitee against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided, however, that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such claim Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against any such third party on account of such indemnity payment are hereby made expressly subordinated and subjected in right of payment to the Indemnitee’s rights against such third party. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the foregoing subrogation and subordination rights. Nothing in this Section 9.3(d) shall be construed to require any party hereto to obtain or maintain any insurance coverage.
(e) A failure to give timely notice as provided in this Section 7.39.3 shall not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right party which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Algonquin Power & Utilities Corp.), Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Defense of Claims. (i) If any legal proceedings shall be instituted or Person entitled to receive indemnification under this Agreement (an "Indemnitee") receives notice of the assertion of any claim is asserted or of the commencement of any claim, action, or proceeding made or brought by any third Person who is not a party in respect to this Agreement or an Affiliate of which any a party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity this Agreement (the a "Indemnified PartyThird Party Claim") shall give the party with respect to which indemnification is to be sought from whom indemnity is sought a Person required to provide indemnification under this Agreement (the an "Indemnifying Party") ), the Indemnitee shall give such Indemnifying Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than ten (10) days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may not compromise or settlement thereofsettle such Third Party Claim without the prior written consent of the Indemnifying Party, which control consent shall at all times rest with the Indemnified Partynot be unreasonably withheld.
(ii) If, unless within ten (10) days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claim, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 7.8(c)(i), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against or settle diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for all reasonable expenses thereof for which the Indemnifying Party is liable pursuant to Section 7.8(a) or (b), as applicable.
(iii) Without the prior written consent of the Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such Legal Expenses offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnifying Party shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or incurred by Indemnitee up to the date of said notice. The Indemnitee will have the right to reject any settlement approved by the Indemnifying Party if the Indemnified Party determines in good faith Indemnitee is not fully and unconditionally released from any liability resulting from that the incurrence claim or is required to pay any costs, expenses or damages to any person as a result of the same is appropriate in light claim that are not covered by the indemnity provided herein.
(iv) Any claim by an Indemnitee on account of defenses an Indemnifiable Loss which does not available to result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying PartyParty reasonably prompt written notice thereof, conflicts stating the nature of interest or other similar circumstancessuch claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than ten (10) days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of thirty (30) days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such 30-day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement (if any).
(v) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the Prime Rate) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(vi) A failure to give timely notice as provided in this Section 7.37.8(c) shall not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right party which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Second Option and Purchase and Sale Agreement (Keyspan Corp), Option and Purchase and Sale Agreement (Keyspan Corp)
Defense of Claims. If any legal proceedings shall be instituted or any claim a Third Party Claim is asserted by any third party in respect of which any party hereto may have made against an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party", (a) shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, Seller will be entitled to participate in the defense of thereof and, (b) if it so chooses, to assume the defense thereof with counsel selected by the Seller, provided that in connection with such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party assumption (i) such counsel is not reasonably objected to by the Indemnified Party and (ii) the Seller, subject to Section 10.09, first admits in writing its liability to indemnify the Indemnified Party hereunder with respect to all elements of such proceeding or claim; claim in full to the extent such claim is valid. Should the Seller so elect to assume the defense of a Third Party Claim, the Seller will not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Seller elects to assume the defense of a Third Party Claim, the Indemnified Party will (i) cooperate in all reasonable respects with the Seller in connection with such defense and (ii) furnishes satisfactory evidence of its financial ability to indemnify not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnified PartySeller's prior written consent, in which case, as the Indemnifying Party case may be. If the Seller shall assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; providedany Third Party Claim, however, that:
(a) the Indemnified Party shall be entitled to participate in the (but not control) such defense of such claim and to employ with its own counsel at its own expense to assist in expense. If the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that Seller does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Third Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3Claim, the Indemnified Party shall have may defend the right to defend such claim same in such manner as it may deem appropriate at appropriate, including settling such claim or litigation after giving notice to the cost and expense Seller of such terms and, subject to Section 10.09, the Indemnifying Party, and the Indemnifying Party Seller will promptly reimburse the Indemnified Party therefore upon written request. Anything contained in accordance with this Section 7.3. The reimbursement Agreement to the contrary notwithstanding, the Seller shall not be entitled to assume the defense of feesany part of a Third Party Claim that seeks an order, costs and expenses required by this Section 7.3 shall be made by periodic payments during injunction or other equitable relief or relief for other than money damages against the course of the investigations or defense, as and when bills are received or expenses incurredIndemnified Party.
Appears in 2 contracts
Samples: Certificate Purchase Agreement (Charming Shoppes Inc), Certificate Purchase Agreement (Charming Shoppes Inc)
Defense of Claims. (a) If any legal proceedings shall be instituted or any claim is asserted by any third party in shall notify any Indemnified Party with respect of which to any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity matter (the a "Indemnified PartyTHIRD PARTY CLAIM") shall which may give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 daysrise to a claim for indemnification against Seller under Section 8.1, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to then the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party ----------- shall have the right, at its option and expense, to participate promptly notify Seller in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimwriting; provided, however, that no delay on the employment part of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available notifying Seller shall relieve Seller from any obligation hereunder unless (and then solely to the Indemnifying Party, conflicts of interest or other similar circumstances;extent) Seller thereby is materially prejudiced.
(b) Seller will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice satisfactory to the Indemnified Party so long as (i) Seller notifies the Indemnified Party in writing within 15 days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party shall obtain will assume the prior written approval defense of such claim, (ii) Seller provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Seller will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages not in excess of the limitations set forth in Section 8.6 hereof and does not seek an ----------- injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedentual custom or practice adverse to the continuing business interests of the Indemnified Party, and (v) Seller conducts the defense of the Third Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);Claim actively and diligently.
(c) no Indemnifying So long as Seller is conducting the defense of the Third Party shall claim in accordance with Section 8.2(b) above, (i) the Indemnified Party -------------- may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (ii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement that does with respect to the Third Party Claim without the prior written consent of Seller (not include as an unconditional term thereof to be withheld unreasonably), and (iii) Seller will not consent to the giving by each claimant entry of any judgment or plaintiff enter into any settlement with respect to each the Third Party Claim without the prior written consent of the Indemnified Party of a release from all liability in respect of such claim; and(not to be withheld unreasonably).
(d) In the Indemnifying event any of the conditions in Section 8.2(b) above -------------- is or becomes unsatisfied, however, (i) the Indemnified Party shall not be entitled may defend against, and consent to control the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control overneed not consult with, the defense or settlement of obtain any claim to the extent the claim seeks an orderconsent from, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Seller in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; providedtherewith), however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party (ii) Seller will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement promptly and periodically for the costs of feesdefending against the Third Party Claim, costs including reasonable attorneys' fees and expenses (but only if and to the extent they are required to do so under this Agreement), an (iii) Seller will remain responsible for any Indemnifiable Costs the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredArticle VIII.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Global Imaging Systems Inc), Stock Purchase Agreement (Global Imaging Systems Inc)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the The Indemnifying Party shall not relieve it from may elect to assume and control the defense of any liability that it may have Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party other than to and the extent payment of expenses related thereto, if (a) the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at acknowledges its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability obligation to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume for any Losses resulting from such control at its expense through counsel reasonably satisfactory to such Indemnified Party, third party Claim and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party provides reasonable evidence to the Indemnified Party of its election financial ability to satisfy such obligation; (b) the Claim does not seek to impose any liability or obligation on the Indemnified Party other than for money damages; and (c) the Claim does not relate to the Indemnified Party’s relationship with its customers or employees. If such conditions are satisfied and the Indemnifying Party elects to assume and control of the defense of any such actiona Claim, then (i) the Indemnifying Party shall will not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by settlement of such Indemnified Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the Indemnifying Party in connection with may settle such Claim without the defense thereof other than reasonable costs consent of investigation and of liaison counsel for the Indemnified Party; providedand (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, however, that but the Indemnified Party will be responsible for the fees and expenses of such counsel unless (A) the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available has failed to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not adequately assume control of the defense of such claim as provided Claim or to employ counsel with respect thereto or (B) a conflict of interest exists between the interests of the Indemnified Party and the Indemnifying Party that requires representation by separate counsel, in this Section 7.3which case the fees and expenses of such separate counsel will be paid by the Indemnifying Party. If such conditions are not satisfied, the Indemnified Party shall have may assume and control the right to defend such claim in such manner as it may deem appropriate defense of the Claim at the cost and expense of the Indemnifying Party, ’s cost and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredexpense.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Roller Bearing Co of America Inc), Asset Purchase Agreement (Roller Bearing Co of America Inc)
Defense of Claims. 7.2.1. If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a Party or any claim Affiliate of a Party (a “Third Party Claim”), with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than twenty (20) calendar days after the Indemnitee’s receipt of notice of such Third Party Claim except at otherwise provided by Section 7.2.6. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Indemnifying Party, unless the ’s expense and by such Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its ’s own expense to assist in the handling of such claimcounsel; provided, however, that the employment of such counsel shall be at the expense of for the Indemnifying Party if who shall conduct the Indemnified defense of such Third Party determines Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith that in such participation is appropriate in light defense at such Indemnitee’s own expense. If an Indemnifying Party elects not to assume the defense of defenses not available to any Third Party Claim, the Indemnitee may compromise or settle such Third Party Claim over the objection of the Indemnifying Party, conflicts of interest which settlement or other similar circumstances;
(b) compromise shall conclusively establish the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing Party’s Liability pursuant to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Partythis Agreement; provided, however, that the Indemnitee provides written notice to the Indemnifying Party of its intent to settle and such notice reasonably describes the terms of such settlement at least ten (10) Business Days prior to entering into any settlement.
7.2.2. If, within twenty (20) days after an Indemnitee provides written notice to the Indemnifying Party of any Third Party Claim, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in Section 7.2.1, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if the Indemnifying Party shall fail to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense and the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
7.2.3. Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, which consent shall not be unreasonably withheld or delayed, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to Liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to Liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within twenty (20) days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum Liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or other similar circumstancesincurred by Indemnitee up to the date of said notice.
7.2.4. Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than twenty (20) days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of twenty (20) days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such twenty (20) day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
7.2.5. The amount of any Indemnifiable Loss shall be reduced to the defense extent that the Indemnitee receives any insurance proceeds with respect to an Indemnifiable Loss. If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof to the date or repayment at the “prime rate” as published in The Wall Street Journal) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
7.2.6. A failure to give timely notice as provided in this Section 7.37.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Put Option Agreement (EnergySolutions, Inc.), Asset Sale Agreement (EnergySolutions, Inc.)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third Each party in respect of which any party hereto may have an obligation entitled to indemnify another party, the party asserting such right to indemnity indemnification under ----------------- this Section 7 (the "Indemnified Party") shall give notice to the party from whom indemnity is sought required to provide indemnification (the "Indemnifying Party") written notice thereof within 30 dayspromptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, but any failure to so notify and shall permit the Indemnifying Party shall not relieve it from to assume the defense of any liability such claim or any litigation resulting therefrom, provided that it may have to the Indemnified Party other than to the extent counsel for the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party Party, who shall have the right, at its option and expense, to participate in conduct the defense of such proceeding claim or claimlitigation, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to be approved by the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Partywhose approval shall not unreasonably be withheld), and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to may participate in the such defense of at such claim and to employ counsel at its own expense to assist in the handling of such claimparty's expense; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party -------- ------- shall pay such expense if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval representation of the Indemnified Party before entering into by counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any settlement other party represented by such counsel in such proceeding, and provided further that the -------- ------- failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 7 unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or ceasing to defend against such claim (litigation shall, except with such approval the consent of each Indemnified Party which consent shall not to be unreasonably withheld);
(c) no Indemnifying Party shall , consent to the entry of any judgment or enter into any settlement that which does not include as an unconditional term thereof the giving by each the claimant or plaintiff to each such Indemnified Party of a release from all liability in respect to such claim or litigation and include a statement as to or an admission of such claim; and
(d) the Indemnifying Party shall not be entitled fault, culpability or a failure to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense act by or settlement on behalf of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the No Indemnifying Party shall be liable for such Legal Expenses if the required to indemnify any Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available with respect to the any settlement entered into without such Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred's prior written consent.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Digital Island Inc), Investors' Rights Agreement (Digital Island Inc)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim") with respect to which ----------------- indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than twenty (20) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement.
(b) If, unless within twenty (20) calendar days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof. Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs or other similar circumstancesexpenses paid or incurred by Indemnitee up to the date of said notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall ------------ be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than twenty (20) calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of thirty (30) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the publicly announced prime rate then in effect of Mellon Bank of Philadelphia) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 2 contracts
Samples: Asset Purchase Agreement (WPS Resources Corp), Asset Purchase Agreement (WPS Resources Corp)
Defense of Claims. If (i) The Purchaser, at its own expense and through counsel chosen by it, may elect to defend against, negotiate, settle or otherwise deal with any legal proceedings shall be instituted or Claim which relates to any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another partyLosses; and if it so elects, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof it shall, within 30 days(thirty) Business Days after receiving notice of Claim (or sooner, but any failure to if the nature of such Claim so requires), notify the Indemnifying Indemnified Party of its intent to do so, and such Indemnified Party shall not relieve it cooperate fully in the defense, negotiation or settlement of any such Claim. After notice from any liability that it may have the Purchaser to the Indemnified Party other than Parties of its election to defend against, negotiate, settle or otherwise deal with any such Claim, Purchaser shall not be liable to the extent Indemnified Parties under this Agreement for any legal or other expenses subsequently incurred by the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate Indemnified Parties in the defense of such proceeding or claim, but not to control connection with the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that all Indemnified Parties shall have the employment right to collectively employ one (and only one) counsel to represent such Indemnified Parties in respect of such Claim hereunder (which counsel shall be at reasonably acceptable to the expense Purchaser) if, in the reasonable opinion of counsel to the Indemnified Parties, a conflict of interest between the Indemnified Parties and the Purchaser may exist in respect of such Claim that would make such separate representation advisable, and in that event (x) the reasonable fees and expenses of such separate counsel shall be paid by the Purchaser and (y) each of the Indemnifying Party if Purchaser and the Indemnified Party determines Parties shall have the right to direct its own defense in good faith respect of such Claim; provided, further, that the Purchaser shall not be required to pay for more than one additional counsel (excluding local counsel) for Indemnified Parties in connection with any Claim hereunder. The parties hereto agree to cooperate fully with each other in connection with any Claims hereunder. If the Purchaser elects not to defend against, negotiate, settle or otherwise deal with such participation is appropriate Claim, or fails to notify the Indemnified Parties of its election within thirty (30) Business Days after request by the Indemnified Parties to assume the defense of any such Claim, the Indemnified Parties may assume control of the defense of such Claim at Purchaser's expense. Notwithstanding anything in light of defenses not available this Section 2.6 to the Indemnifying Partycontrary, conflicts of interest or other similar circumstances;
(b) neither the Indemnifying Party shall obtain Purchaser nor the Indemnified Parties may, without the prior written approval consent of the Indemnified Party before entering into other party, settle or compromise any settlement of such claim Claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall permit a default or consent to the entry of any judgment or enter into any settlement that does not include as unless the claimant and such party provide to such other party an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a unqualified written release from all liability in respect of such claim; and
(d) Claim, and such settlement or compromise does not materially and adversely impair the Indemnifying Party shall ability of the Indemnified Parties to conduct their respective businesses, and does not be entitled contain any admission of wrongdoing on the part of any of the Indemnified Parties. Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the applicable third party claimant, and the Purchaser notifies the Indemnified Parties in writing of the Purchaser's willingness to control (but shall be entitled to participate at its own expense in accept the defense of)settlement offer and pay the amount called for by such offer, and the Indemnified Party Parties decline to accept such offer, the Indemnified Parties may continue to contest such Claim, free of any participation by the Purchaser, and the amount of any ultimate liability with respect to such Claim that the Purchaser has an obligation to pay hereunder shall be entitled to have sole control over, the defense or settlement of any claim limited to the extent lesser of (A) the claim seeks an order, injunction, non-monetary or other equitable relief against amount of the settlement offer that the Indemnified Party which, if successful, could materially interfere with Parties declined to accept plus the business, operations, assets, condition (financial or otherwise) or prospects Losses of the Indemnified Party. After written notice by Parties relating to such Claim through the Indemnifying Party to date of its rejection of the settlement offer or (B) the aggregate Losses of the Indemnified Party Parties with respect to such Claim.
(ii) After any final decision, judgment or award shall have been rendered by a Governmental Body of its election to assume control competent jurisdiction and the expiration of the defense of any such actiontime in which to appeal therefrom, the Indemnifying Party or a settlement shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for have been consummated, or the Indemnified Party; provided, however, that Parties and the Indemnifying Party Purchaser shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available have arrived at a mutually binding agreement with respect to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3a Claim hereunder, the Indemnified Party Parties shall have forward to the right Purchaser notice of any sums due and owing by the Purchaser pursuant to defend this Agreement with respect to such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredmatter.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Leucadia National Corp), Asset Purchase Agreement (Metrocall Holdings Inc)
Defense of Claims. (a) If any a Corn Products Group Member or a Parent Company Group Member has a claim to indemnification relating to an ongoing legal proceedings shall be instituted action, claim or any claim is asserted by any third proceeding against such Corn Products Group Member or Parent Company Group Member, the indemnified party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity accordance with Section 9.1 or 9.2 (the "Indemnified Party") shall give have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any indemnifying party from whom indemnity is sought hereunder (the "Indemnifying Party") written notice thereof within 30 days), but and in any failure to so notify such case the Indemnifying Party shall not relieve it from any liability that it cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may have to be reasonably requested by the Indemnified Party other than to the extent in connection therewith; provided, that (i) the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the rightmay participate, through counsel chosen by it and at its option and own expense, to participate in the defense of any such proceeding or claim, but not action or suit as to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect has so elected to such proceeding or claimconduct and control the defense thereof; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in not, without the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense written consent of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses (which written consent shall not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of , pay, compromise or settle any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but , action or suit, except that no such consent shall be entitled to participate at its own expense in the defense of)required if, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of following a written request from the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be liable adversely determined, such Indemnifying Party has an obligation to provide indemnification hereunder to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with Party. Notwithstanding the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3foregoing, the Indemnified Party shall have the right to defend pay, settle or compromise any such claim claim, action or suit without such consent, provided that in such manner as it may deem appropriate at event the cost and expense of Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where the Parent Companies are the Indemnifying Party, and will have no continuing effect in any material respect on Corn Products or its business, assets or operations, including each of the Companies, then the Indemnifying Party shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will promptly reimburse be sought by any Indemnified Party from any Indemnifying Party hereunder if the Indemnifying Party has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party has an obligation to provide indemnification hereunder to the Indemnified Party therefore in accordance with this Section 7.3respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith; provided that the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnifying Party has so elected to conduct and control the defense thereof. The reimbursement Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of feesthe Indemnifying Party to such payment, costs settlement or compromise and expenses required by this Section 7.3 such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredwaived.
Appears in 1 contract
Samples: Transaction Agreement (Corn Products International Inc)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third Each party in respect of which any party hereto may have an obligation entitled to indemnify another party, the party asserting such right to indemnity indemnification under this Article VII (the "“Indemnified Party"”) shall give notice to the party from whom indemnity is sought required to provide indemnification (the "“Indemnifying Party"”) written notice thereof within 30 dayspromptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, but any failure to so notify and shall permit the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in assume the defense of any such proceeding claim or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matterany litigation resulting therefrom; provided, howeverthat counsel for the Indemnifying Party, that:
(a) the Indemnified Party who shall be entitled to participate in conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld) and to employ counsel the Indemnified Party may participate in such defense at its own the Indemnified Party’s expense to assist (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in such action, in which case the handling fees and expenses of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if Party), and provided, further, that the failure of any Indemnified Party determines in good faith that such participation is appropriate in light to give notice as provided herein shall not relieve the Indemnifying Party of defenses not available its obligations under this Article VI unless, and only to the extent that, the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, conflicts in the defense of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (litigation shall, except with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall the consent of each Indemnified Party, consent to the entry of any judgment or enter into any settlement that which does not include as an unconditional term thereof the giving by each the claimant or plaintiff to each such Indemnified Party of a release from all liability in respect of to such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the claim or litigation. Each Indemnified Party shall be entitled to have sole control over, the defense furnish such information regarding itself or settlement of any claim to the extent the claim seeks in question as an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party may reasonably request in writing and as shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party reasonably required in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredlitigation resulting therefrom.
Appears in 1 contract
Defense of Claims. If any legal proceedings shall be instituted or In connection with any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right give rise to indemnity (the "Indemnified Party") shall give the under this Article 7 resulting from or arising out of any claim or proceeding against an Indemnitee by a person that is not a party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 dayshereto, but any failure to so notify the Indemnifying Party shall (unless such Indemnitee elects not relieve it from any liability that it may have to seek indemnity hereunder for such claim), upon written notice to the Indemnified Party other than to relevant Indemnitee, assume the extent the Indemnifying Party is actually prejudiced therebydefense of any such claim or proceeding. The Indemnifying Party shall have the right, at its option and expense, select counsel reasonably acceptable to participate in such Indemnitee to conduct the defense of such proceeding claim or claimproceeding, but not to control the defense, negotiation or settlement thereof, which control shall at take all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party steps necessary in the defense or settlement thereof and shall at all times diligently and promptly perform resolution thereof. Without the prior written consent of such matter; providedthe Indemnitee, howeverwhich consent shall not be unreasonably withheld, that:
(a) the Indemnified Indemnifying Party shall be will not enter into any settlement of, or any claim or proceeding which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to participate in indemnification hereunder. Without the defense prior written consent of such the Indemnifying Party, which consent shall not be unreasonably withheld, the Indemnitee will not enter into any settlement or any claim and or proceeding which would lead to employ counsel at its own expense to assist in liability or create any financial or other obligation on the handling of such claim; provided, however, that the employment of such counsel shall be at the expense part of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) unless the Indemnifying Party shall obtain the prior has, after written approval of the Indemnified Party before entering into any settlement of notice, failed or refused to acknowledge responsibility for or defend such claim or ceasing proceeding within a reasonable period of time after notice is provided pursuant to Section 7.3. If the Indemnifying Party fails to discharge or undertake to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to liability, upon receipt of written notice from the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect Indemnitee of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionfailure, the Indemnifying Party shall not be liable have thirty (30) days to cure such Indemnified Party hereunder for any Legal Expenses subsequently incurred failure by prosecuting such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesa defense. If the Indemnifying Party does not assume control of fails to do so within such cure period, then the defense of such claim as provided in this Section 7.3, Indemnitee may settle the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost same and expense of the Indemnifying Party’s liability to the Indemnitee shall be conclusively established by such settlement provided that such settlement is entered into on commercially reasonable terms and conditions, the amount of such liability to include both the settlement consideration and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required (including attorneys’ fees) incurred by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredIndemnitee in effecting such settlement.
Appears in 1 contract
Samples: Lease Agreement (Basin Water, Inc.)
Defense of Claims. 9.4.1 If any legal proceedings shall be instituted or Indemnitee receives written notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third party in Third Party (a “Third Party Claim”) against such Indemnitee, with respect of to which any party hereto may have an obligation Indemnifying Party is obligated to indemnify another partyprovide indemnification under this Agreement, the party asserting Indemnitee will give such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any event not later than ten (10) calendar days after receipt of notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to so notify the Indemnifying Party shall not only relieve it the Indemnifying Party from any liability that it may have its obligation to indemnify the Indemnified Party other than Indemnitee pursuant to this Article 9 to the extent that the Indemnifying Party is actually materially prejudiced therebyby such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). The Upon receipt of notification of a Third Party Claim, the Indemnifying Parties, shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof, provided, however, that the Indemnifying Parties shall not have the right to assume and control the investigation and the defense (or to continue to control the investigation and defense) if (i) the Third Party Claim relates to or arises in connection with a criminal proceeding, action, indictment, allegation or investigation by a Governmental Authority, (ii) an Indemnifying Party has failed to defend or is failing to defend in good faith the Third Party Claim, (iii) an Indemnifying Party and the Indemnitee are both named parties to the Third Party Claim, and the Indemnitee reasonably concludes based on the advice of counsel that representation of both parties by the same counsel would be or could reasonably be expected to become inappropriate under applicable ethical standards due to actual or potential conflicting interests, (iv) in the case of any losses, liabilities, damages, claims, awards, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) suffered by Buyer, such Losses in Buyer’s good faith judgment could result in Indemnifiable Losses in excess of the Cap Limitation, or (v) an Indemnifying Party does not, in the Indemnitee’s reasonable judgment, have sufficient financial resources to satisfy the amount of any adverse judgment that is reasonably likely to result with respect to such Third Party Claim. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right, at its option right to employ separate counsel and expense, to participate in the investigation and defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within a reasonable time after receipt of notice thereof or has ceased (or is required to cease) the defense of such claim, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that such participation is appropriate are in light of defenses not conflict with those available to the Indemnifying Party. Notwithstanding the foregoing, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain not be liable for the fees and disbursements of more than one counsel for all Indemnitees in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written approval consent of the Indemnified Indemnitee, the Indemnifying Party before entering will not enter into any settlement of such claim any Third Party Claim that would result in (A) the imposition of a consent order, injunction, decree or ceasing to defend against such claim judgment that would restrict the future activity or conduct of, or impose any non-monetary liability, obligation or commitment on, the Indemnitee or any of its Affiliates, (with such approval not B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnitee or any of its Affiliates, (C) a finding or admission that would have an adverse effect on other claims made or threatened or reasonably anticipated to be unreasonably withheld);
made against the Indemnitee or any of its Affiliates, or (cD) no any monetary liability of the Indemnitee that shall not be promptly paid or reimbursed by the Indemnifying Party Party. Any such settlement or compromise shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each the claimant or plaintiff to each Indemnified Party of a release of the Indemnitee and the Indemnified Party from all liability in with respect to such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant (which offer provides for a full and unconditional release of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense ofIndemnitee), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to notifies the Indemnified Party Indemnitee in writing of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts ’s willingness to accept the settlement offer and pay the amount called for by such offer without reservation of interest any rights or other similar circumstances. If defenses against the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3Indemnitee, the Indemnified Party shall have the right Indemnitee may continue to defend contest such claim in such manner as it may deem appropriate at the cost and expense claim, free of any participation by the Indemnifying Party, and the Indemnifying Party shall have no obligation to the Indemnitee hereunder with respect to such claim and, if the Indemnifying Party is a co-defendant and as a result of not being able to settle on the terms rejected by the Indemnitee, the Indemnifying Party is found liable for, or settles the claims against the Indemnifying Party for more than the Indemnifying Party could have settled such claims, then the Indemnitee will indemnify the Indemnifying Party hereunder for such excess.
9.4.2 Any claim by an Indemnitee on account of an Indemnifiable Loss that does not result from a Third Party Claim will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after the later to occur of the incurrence or discovery thereof, provided, however, that the failure of the Indemnitee to notify the Indemnifying Party within such 30 calendar days shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article 9 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise); provided that no Indemnifying Party will have any liability for a claim notice of which is not received by the Indemnifying Party within 30 calendar days of the applicable expiration date specified in Section 9.1.2 or 9.2.2, respectively. The Indemnifying Party will have a period of 30 calendar days after receipt of a timely notice of claim within which to respond in writing to such claim. If the Indemnifying Party does not so respond within such thirty (30) calendar day period following receipt of a timely claim, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Article 9.
9.4.3 If, after the making of any Indemnification Payment, the amount of the Indemnifiable Loss to which such payment relates is reduced by actual recovery, settlement or otherwise under any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction (less any costs, expenses, premiums or Taxes incurred in connection therewith) will promptly reimburse be repaid by the Indemnified Indemnitee to the Indemnifying Party. Upon making any Indemnification Payment, the Indemnifying Party therefore in accordance with this Section 7.3. The reimbursement will, to the extent of feessuch Indemnification Payment, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course subrogated to all rights of the investigations Indemnitee against any third party in respect of the Indemnifiable Loss to which the Indemnification Payment relates; provided that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss, and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, all claims of the Indemnifying Party against any such third party on account of said Indemnification Payment will be subrogated and subordinated in right of payment to the Indemnitee’s rights against such third party on account of said Indemnification Payment. Without limiting the generality or defenseeffect of any other provision of this Article 9, as each such Indemnitee and when bills are received or expenses incurredIndemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
Appears in 1 contract
Defense of Claims. If a claim for Losses (a “Claim”) is to be made by a GreenHouse Indemnified Party (an “Indemnified Party”), such Indemnified Party shall give notice (a “Claim Notice”) to the Company (“Indemnifying Party”), as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which may give rise to Losses for which indemnification may be sought under this Article VIII. If any legal proceedings Proceeding is filed or instituted making a claim against any Indemnified Party with respect to a matter subject to indemnity hereunder, notice thereof shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation given to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party as promptly as practicable; however, the failure of any Indemnified Party to give timely notice hereunder shall not relieve it from any liability that it may have affect rights to the Indemnified Party other than indemnification hereunder, except to the extent the Indemnifying such Indemnified Party is actually prejudiced therebyby such failure (to the extent determined by a court of competent jurisdiction). The After receipt of such a notice of a Proceeding, the Indemnifying Party shall have the right, at right to defend the Indemnified Party against the Proceeding with counsel of its option and expense, choice satisfactory to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the nature of the claim creates an ethical conflict or otherwise makes it inadvisable for the same counsel to represent the Indemnified Party and the Indemnifying Party, so long as (A) the Indemnifying Party (i) admits notifies the Indemnified Party in writing its liability within 15 days after the Indemnified Party has given notice of the claim or Proceeding that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim or raised in the Proceeding, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, that the Indemnifying Party may assume such control at will have the financial resources to defend against the Proceeding and fulfill its expense through counsel reasonably satisfactory to such Indemnified Partyindemnification obligations hereunder, (C) the Proceeding involves only a claim for money damages and no other relief, and (D) the Indemnifying Party conducts the defense of the Proceeding actively and diligently. The Indemnifying Party shall not compromise or settle such Proceeding without the written consent of the Indemnified Party will fully cooperate as whose consent shall not be withheld unreasonably. In all other cases the Indemnified Party may defend the claim or Proceeding with counsel of its choosing reasonably requested acceptable to the Indemnifying Party at the expense of the Indemnifying Party. The Indemnified Party shall not compromise or settle such Proceeding without the written consent of the Indemnifying Party whose consent shall not be withheld unreasonably. The Indemnified Party may, at its own cost, participate in the investigation, trial and defense of any such Proceeding defended by the Indemnifying Party and any appeal arising therefrom. The parties shall cooperate with each other in connection with any defense in any notifications to insurers. If the Indemnifying Party fails to promptly and diligently assume the defense of such Proceeding after receipt of notice hereunder, the Indemnified Party against which such claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense Proceeding with counsel of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be choosing at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to and the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate participate therein at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredits own cost.
Appears in 1 contract
Samples: Share Exchange Agreement (GreenHouse Holdings, Inc.)
Defense of Claims. If any legal proceedings shall be instituted Upon receipt by Chemfab, Birdair Structures or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another their respective Agents (each such party, the party asserting for such right purposes, being hereinafter referred to indemnity (the as an "Indemnified Party") of notice of any action, suit, proceeding, claim, demand or assessment against such Indemnified Party which might give rise to a claim pursuant to this Section 6, the Indemnified Party shall give the party from whom indemnity is sought written notice thereof to Birdair and Taiyo (the each such party, for purposes of this Section 6, being hereinafter referred to as an "Indemnifying Party") written ), indicating the nature of such claim and the basis therefor. Such notice thereof within 30 days, but any failure given to so notify Taiyo shall be deemed to be sufficient as if given to all the Indemnifying Party shall not relieve it from any liability that it may have Affiliates of Taiyo for purposes of giving notice to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyall such Affiliates of their indemnification obligations hereunder. The Indemnifying Party shall have the rightA claim for indemnity may, at its the option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits be asserted as soon as any claim has been asserted by a third party in writing its liability to writing, regardless of whether actual harm has been suffered or out-of-pocket expenses incurred, provided that the Indemnified Party hereunder with shall have reasonably determined that it may be liable or shall otherwise incur losses, damages or costs in respect to of such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify . Promptly after a claim is made for which the Indemnified Party seeks indemnity, the Indemnified Party shall permit the Indemnifying Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory option, to assume the complete defense of such Indemnified Partyaction, suit, proceeding, claim, demand or assessment with full authority to conduct such defense and to settle or otherwise dispose of the same (except as hereinafter provided) and the Indemnified Party will cooperate fully cooperate as reasonably requested by the in such defense. The Indemnifying Party will not, and Taiyo will not cause or permit any Indemnifying Party to, in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of any such claim and to employ counsel at its own expense to assist in action, suit, proceeding, claim, demand or assessment, except with the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval consent of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall Party, consent to the entry of any judgment or enter into any settlement that which does not include include, as an unconditional term thereof thereof, the giving by each the claimant or plaintiff to each the Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim thereof. Notwithstanding anything to the extent the claim seeks an ordercontrary in this Section 6, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written after notice by the Indemnifying Party to the Indemnified Party of its the Indemnifying Party's election to assume control of the defense of any such action, suit, proceeding, claim, demand or assessment, the Indemnifying Party shall not only be liable to such the Indemnified Party hereunder for any Legal Expenses (i) such legal fees or other expenses subsequently incurred by such the Indemnified Party in connection with the defense thereof other than reasonable costs at the request of investigation and of liaison counsel for the Indemnified Indemnifying Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if and (ii) any and all legal fees and other expenses incurred by the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Partyenforce or assert its rights under this Section 6. As to those actions, conflicts of interest suits, proceedings, claims, demands or other similar circumstances. If assessments with respect to which the Indemnifying Party does not elect to assume control of the defense of such claim as provided in this Section 7.3defense, the Indemnified Party shall have will afford the right Indemnifying Party an opportunity to defend such claim participate in such manner as it may deem appropriate defense, at the Indemnifying Party's own additional cost and expense expense, and will not settle or otherwise dispose of any of the same without the consent of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.
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Defense of Claims. (a) If any legal proceedings Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any Affiliate of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party, the Indemnitee shall give such Indemnifying Party reasonably prompt written notice thereof, but in any event such notice shall not be given later than ten (10) calendar days after the Indemnitee’s receipt of written notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party’s expense and by such Indemnifying Party’s own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such Third Party Claim shall be instituted or reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee’s own expense. If an Indemnifying Party elects not to assume the defense of any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another partyThird Party Claim, the party asserting Indemnitee may compromise or settle such right to indemnity (Third Party Claim over the "Indemnified Party") shall give objection of the party from whom indemnity is sought (the "Indemnifying Party", which settlement or compromise shall conclusively establish the Indemnifying Party’s liability pursuant to this Agreement.
(b) If, within ten (10) calendar days after an Indemnitee provides written notice to the Indemnifying Party of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in Section 8.2(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof within 30 days, but any failure to for so notify long as the Indemnifying Party shall not relieve it from any liability that it may have to continue the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the diligent defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain Claim. Without the prior written approval consent of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionIndemnitee, the Indemnifying Party shall not be liable enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation or restriction on the part of the Indemnitee. If a firm offer is made to settle a Third Party Claim would not lead to liability or the creation of a financial or other obligation or restriction on the part of the Indemnitee and the Indemnifying Party desires to accept and agree to such Indemnified offer, the Indemnifying Party hereunder for any Legal Expenses subsequently incurred by shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such Indemnified Party in connection with the defense thereof other than reasonable costs firm offer within ten (10) calendar days after its receipt of investigation and of liaison counsel for the Indemnified Party; providedsuch notice, however, that the Indemnifying Party shall be liable for relieved of its obligations to defend such Legal Expenses if Third Party Claim and the Indemnified Indemnitee may contest or defend such Third Party determines in good faith that Claim. In such event, the incurrence maximum liability of the same is appropriate in light Indemnifying Party as to such Third Party Claim will be the amount of defenses not available such settlement offer plus reasonable costs and expenses paid or incurred by Indemnitee up to the date of said notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by giving the Indemnifying PartyParty reasonably prompt written notice thereof, conflicts stating the nature of interest or other similar circumstancessuch claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than ten (10) calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of thirty (30) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party fails to accept such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the publicly announced prime rate then in effect as published in the Wall Street Journal shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party which was entitled to receive such notice was actually prejudiced as a result of such failure.
(f) Notwithstanding the foregoing, the Parties agree and acknowledge that (i) Seller shall have the right be entitled exclusively to control, defend such claim in such manner as it may deem appropriate at the cost and expense settle any litigation, administrative or regulatory proceeding arising out of the Indemnifying Partyor related to any Excluded Liabilities, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore Buyer agrees to cooperate fully at Seller’s expense in accordance with this Section 7.3. The reimbursement of fees, costs connection therewith and expenses required by this Section 7.3 (ii) Buyer shall be made by periodic payments during the course entitled exclusively to control, defend and settle any litigation, administrative or regulatory proceeding, arising out of the investigations or defenserelated to any Guarantee Liabilities, as and when bills are received or expenses incurredSeller agrees to cooperate fully at Buyer’s expense in connection therewith.
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Samples: Purchase and Sale Agreement (Mdu Resources Group Inc)
Defense of Claims. 13.2.1. If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a Party or any claim Affiliate of a Party (a "Third Party Claim"), including an information document request or a notice of proposed disallowance issued by the IRS relating to a matter covered by Section 10.6, with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than twenty (20) calendar days after the Indemnitee's receipt of notice of such Third Party Claim, except as otherwise provided by Section 13.2.6. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Indemnifying Party, unless the 's expense and by such Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its 's own expense to assist in the handling of such claimcounsel; provided, however, that the employment of such counsel shall be at the expense of for the Indemnifying Party if who shall conduct the Indemnified defense of such Third Party determines Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith that in such participation is appropriate in light defense at such Indemnitee's own expense. If an Indemnifying Party elects not to assume the defense of defenses not available to any Third Party Claim, the Indemnitee may compromise or settle such Third Party Claim over the objection of the Indemnifying Party, conflicts of interest which settlement or other similar circumstances;
(b) compromise shall conclusively establish the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing Party's Liability pursuant to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Partythis Agreement; provided, however, that the Indemnitee provides written notice to the Indemnifying Party of its intent to settle and such notice reasonably describes the terms of such settlement at least ten (10) Business Days prior to entering into any settlement.
13.2.2. If, within twenty (20) days after an Indemnitee provides written notice to the Indemnifying Party of any Third Party Claim, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in Section 13.2.1, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if the Indemnifying Party shall fail to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense and the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
13.2.3. Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, which consent shall not be unreasonably withheld or delayed, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to Liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to Liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within twenty (20) days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum Liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or other similar circumstancesincurred by Indemnitee up to the date of said notice.
13.2.4. Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than twenty (20) days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of twenty (20) days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such twenty (20) day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
13.2.5. The amount of any Indemnifiable Loss shall be reduced to the defense extent that the Indemnitee receives any insurance proceeds with respect to an Indemnifiable Loss. If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof to the date or repayment at the "prime rate" as published in The Wall Street Journal) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
13.2.6. A failure to give timely notice as provided in this Section 7.313.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
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Defense of Claims. If (a) The Indemnifying Party may elect to assume and control the defense of any legal proceedings shall be instituted or any claim is asserted by any third party in respect Claim, including the employment of which any party hereto may have an counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if: (i) the Indemnifying Party acknowledges its obligation to indemnify another party, the party asserting Indemnified Party for any Losses resulting from such right Claim; (ii) the Claim does not seek to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but impose any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to Liability on the Indemnified Party other than money damages; and (iii) the Claim does not relate to the extent Indemnified Party’s relationship with any current customer or current employee.
(b) If the conditions of Section 7.5(a) are satisfied and the Indemnifying Party is actually prejudiced thereby. The elects to assume and control the defense of a Claim, then: (i) the Indemnifying Party shall have will not be liable for any settlement of such Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the right, at its option Indemnifying Party may settle such Claim without the consent of the Indemnified Party; and expense, to (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, but the Indemnified Party will be responsible for the fees and expenses of such proceeding counsel unless: (A) the Indemnifying Party has failed to adequately assume and actively conduct the defense of such Claim or claim, but not to control employ counsel with respect thereto; or (B) in the defense, negotiation or settlement thereof, which control shall at all times rest with reasonable opinion of the Indemnified Party, unless a conflict of interest exists between the interests of the Indemnified Party and the Indemnifying Party that requires representation by separate counsel, in which case the reasonable fees and expenses of such separate counsel will be paid by the Indemnifying Party.
(ic) admits in writing its liability to If the conditions of Section 7.5(a) are not satisfied, the Indemnified Party hereunder with respect may assume the exclusive right to defend, compromise, or settle such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified PartyClaim, in which case, but the Indemnifying Party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may assume such control at its expense through counsel reasonably satisfactory to such not be unreasonably withheld).
(d) Each Indemnified PartyParty shall use commercially reasonable efforts to, and shall cause its Affiliates to use commercially reasonable efforts to, provide the Indemnified Indemnifying Party will fully cooperate with such assistance (without charge) as may reasonably be requested by the Indemnifying Party in connection with any indemnification or defense provided for herein, including, without limitation, providing the defense or settlement Indemnifying Party with such information, documents and records and reasonable access to the services of and consultations with such matter; provided, however, that:
(a) personnel of the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at or its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) Affiliates as the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of deem necessary (provided that such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party access shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially unreasonably interfere with the business, operations, assets, condition (financial or otherwise) or prospects performance of the Indemnified Party. After written notice duties performed by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense responsibilities of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredpersonnel).
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Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third entity that is not a party in respect to this Agreement or an Affiliate of which any such a party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the a "Indemnified PartyThird Party Claim") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 daysagainst such Indemnitee, but any failure with respect to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the which an Indemnifying Party is actually prejudiced thereby. The obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party shall have the rightreasonably prompt written notice thereof, at its option and expense, to participate but in the defense any event not later than ten (10) business days after receipt of notice of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimClaim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article 12 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof with counsel reasonably satisfactory to the Indemnitee. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that such participation is appropriate may be available to the Indemnitee that are in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such for the fees and disbursements of more than one counsel for all Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Parties in connection with any one proceeding or any similar or related proceedings arising from the defense same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof other than reasonable costs the release of investigation the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of liaison counsel the Indemnifying Party's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnified Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party; provided, however, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be liable for such Legal Expenses if limited to the Indemnified Party determines in good faith lesser of (A) the amount of the settlement offer that the incurrence Indemnitee declined to accept plus the Losses of the same is appropriate in light Indemnitee relating to such Third Party Claim through the date of defenses its rejection of the settlement offer or (B) the aggregate Losses of the Indemnitee with respect to such claim.
(b) Any claim by an Indemnitee on account of an Indemnifiable Loss that does not available to result from a Third Party Claim (a "Direct Claim") will be asserted by giving the Indemnifying PartyParty reasonably prompt written notice thereof, conflicts but in any event not later than thirty (30) calendar days after the incurrence thereof or the time Indemnitee knew or should have known of interest or other similar circumstancesthe incurrence thereof, and the Indemnifying Party will have a period of thirty (30) calendar days following the receipt of written notice within which to respond in writing to such Direct Claim. If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.3thirty (30) calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore in accordance with Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Section 7.3. The reimbursement Article 12.
(c) If after the making of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during any Indemnification Payment the course amount of the investigations Indemnifiable Loss to which such payment relates is reduced by recovery, settlement or defenseotherwise under any insurance coverage, as or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction (less any costs, expenses, premiums or taxes incurred in connection therewith) will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any Indemnification Payment, the Indemnifying Party will, to the extent of such Indemnification Payment, be subrogated to all rights of the Indemnitee against any third party that is not an Affiliate of the Indemnitee in respect of the Indemnifiable Loss to which the Indemnification Payment relates; provided that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss, and when bills are received (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, all claims of the Indemnifying Party against any such third party on account of said Indemnification Payment will be subrogated and subordinated in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or expenses incurredeffect of any other provision of this Article 12, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
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Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof. Such notice will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the rightright to participate in, at its option and expenseor, by giving written notice to the Indemnitee, to participate assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
(b) If, within 30 calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 20(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 20(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of if the Indemnifying Party if fails to take reasonable steps necessary to defend diligently such Third Party Claim within 30 calendar days after receiving written notice from the Indemnified Party determines in good faith Indemnitee that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) Indemnitee believes the Indemnifying Party shall obtain has failed to take such steps or if the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent has not undertaken fully to indemnify the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability Indemnitee in respect of such claim; and
(d) all Indemnifiable Losses relating to the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at matter, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Partydefense, and the Indemnifying Party will promptly reimburse be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course prior written consent of the investigations or defenseIndemnitee, as and when bills are received or expenses incurredwhich shall not be unreasonably withheld, the Indemnifying Party will not enter into any settlement of any Third Party Claim.
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Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of such notice of such Third Party Claim. Such notice by the Indemnitee will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel and the Indemnitee will cooperate in good faith in such defense.
(b) If, within ten calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 5.4(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 5.4(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten calendar days after receiving written notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten calendar days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will not exceed the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement amount of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);settlement offer.
(c) no Indemnifying Party shall consent to the entry Any claim by an Indemnitee on account of any judgment or enter into any settlement that an Indemnifiable Loss which does not include as an unconditional term thereof the result from a Third Party Claim (a "Direct Claim") will be asserted by giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall reasonably prompt written notice thereof, but in any event not be entitled to control (but shall be entitled to participate at its own expense in later than 30 calendar days after the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement Indemnitee becomes aware of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partysuch Direct Claim. After written Such notice by the Indemnitee will describe the Direct Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party will have a period of 30 calendar days within which to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable respond in writing to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesDirect Claim. If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.330 calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or to include any specified information in accordance with this Section 7.3. The reimbursement of feesany notice as provided in Sections 5.4(a), costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations 5.4(b) or defense, as and when bills are received or expenses incurred.5.4
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Defense of Claims. If (a) The Indemnifying Party may elect to assume and control the defense of any legal proceedings shall be instituted or any claim is asserted by any third party in respect Claim, including the employment of which any party hereto may have an counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if: (i) the Indemnifying Party acknowledges its obligation to indemnify another party, the party asserting Indemnified Party for any Losses resulting from such right Claim; (ii) the Claim does not seek to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but impose any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to Liability on the Indemnified Party other than money damages; and (iii) the Claim does not relate to the extent Indemnified Party's relationship with any customer or employee.
(b) If the conditions of Section 10.4(a) are satisfied and the Indemnifying Party is actually prejudiced thereby. The elects to assume and control the defense of a Claim, then: (i) the Indemnifying Party shall have will not be liable for any settlement of such Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the right, at its option Indemnifying Party may settle such Claim without the consent of the Indemnified Party; and expense, to (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, but the Indemnified Party will be responsible for the fees and expenses of such proceeding counsel unless: (A) the Indemnifying Party has failed to adequately assume and actively conduct the defense of such Claim or claim, but not to control employ counsel with respect thereto; or (B) in the defense, negotiation or settlement thereof, which control shall at all times rest with reasonable opinion of the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts a conflict of interest or other similar circumstances;
(b) exists between the Indemnifying Party shall obtain the prior written approval interests of the Indemnified Party before entering into any settlement and the Indemnifying Party that requires representation by separate counsel, in which case the fees and expenses of such claim separate counsel will be paid by the Indemnifying Party.
(c) If the conditions of Section 10.4(a) are not satisfied, the Indemnified Party may assume the exclusive right to defend, compromise, or ceasing to defend against settle such claim Claim, but the Indemnifying Party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (with such approval which may not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to . The sole recourse and remedy of the entry Contributing Parties and MG Colorado Holdings for any inaccuracy in or breach of, or any breach of any judgment obligations with respect to, or enter into any settlement that does not include as an unconditional term thereof the giving other claims with respect to, any representation or warranty or alleged representation or warranty by each claimant or plaintiff on behalf of any other Contributing Party contained in or made pursuant to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but this Agreement or any other certificate, schedule, exhibit, instrument, or document delivered pursuant hereto or thereto, shall be entitled to participate at its own expense in under the defense of), provisions of and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects provided in this Article X. Each of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of Contributing Parties and MG Colorado Holdings shall comply with this Article X and will not assert any such actioninaccuracy, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for breach or claim or seek any Legal Expenses subsequently incurred by such Indemnified Party recourse or remedy in connection with the defense respect thereof other than reasonable costs under the provisions of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.Article X.
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Defense of Claims. If Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any legal proceedings shall be instituted or action (including any governmental action), such indemnified party will, if a claim is asserted by any third party in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to such indemnifying parties; provided, however, that an indemnified party (together with all other indemnified parties which any party hereto may be represented without conflict by one counsel) shall have an obligation the right to indemnify another retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party asserting would be inappropriate due to actual or potential differing interests between such right indemnified party and any other party represented by such counsel in such proceeding. The failure to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") deliver written notice thereof to the indemnifying party within 30 daysa reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of liability to the indemnified party under this Section 6 to the extent, and only to the extent, prejudiced thereby, but any failure the omission so to so notify deliver written notice to the Indemnifying Party shall indemnifying party will not relieve it from of any liability that it may have to the Indemnified Party other any indemnified party otherwise than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in under this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred6.
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Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the The Indemnifying Party shall not relieve it from may elect to assume and control the defense of any liability that it may have Loss Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement payment of such matter; providedexpenses related thereto, however, that:
if (a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party provides reasonable evidence to the Indemnified Party of its election financial ability to satisfy such indemnification obligation; (b) the Loss Claim does not seek to impose any liability or obligation on the Indemnified Party other than for money damages; and (c) the Loss Claim does not relate to the Indemnified Party's relationship with its customers or employees. If such conditions are satisfied and the Indemnifying Party elects to assume and control of the defense of any such actiona Loss Claim, then (i) the Indemnifying Party shall will not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by settlement of such Indemnified Loss Claim effected without its consent; (ii) the Indemnifying Party in connection with may settle such Loss Claim without the defense thereof other than reasonable costs consent of investigation and of liaison counsel for the Indemnified Party; providedand (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, however, that but the Indemnified Party will be responsible for the fees and expenses of such counsel unless the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available has failed to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not adequately assume control of the defense of such claim as provided in this Section 7.3Loss Claim or to employ counsel with respect thereto. If such conditions are not satisfied, the Indemnified Party shall have may assume and control the right to defend defense of the Loss Claim; provided that the Indemnified Party may not settle any such claim in such manner as it may deem appropriate at Loss Claim without the cost and expense consent of the Indemnifying Party, which consent will not be unreasonably withheld (and the Indemnifying Party will promptly reimburse the Indemnified Party therefore not be liable for any Claims resulting from a settlement effected in accordance with violation of this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredclause).
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Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than ten (10) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement. (b)
(i) If, unless within ten (10) calendar days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(ii) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same is appropriate in light of defenses not available to the Indemnifying PartyIndemnitee, conflicts of interest or other similar circumstances. If the Indemnifying Party does shall not assume control enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the defense Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of such claim as provided in this Section 7.3, a financial or other obligation on the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense part of the Indemnifying Party, Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such notice, the Indemnifying Party shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will promptly reimburse be the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement amount of fees, such settlement offer plus reasonable costs and expenses required paid or incurred by this Section 7.3 shall be made by periodic payments during Indemnitee up to the course date of the investigations or defense, as and when bills are received or expenses incurredsaid notice.
Appears in 1 contract
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "An Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the rightParticipant, at its option own expense and expensethrough counsel chosen by it(which counsel shall be reasonably acceptable to the Indemnitees), may elect to participate defend any Third-Party Claim. If an Indemnifying Participant elects to defend a Third-Party Claim, then, within ten (10) Business Days after receiving notice of such Third-Party Claim (or sooner, if the nature of such Third Party claim so requires), the Indemnifying Participant shall notify the Indemnitees of its intent to do so, and the Indemnitees shall cooperate in the defense of such proceeding or claim, but not to control Third-Party Claim. The Indemnifying Participant shall pay each Indemnitee’s reasonable out-of-pocket expenses incurred in connection with such cooperation. The Indemnifying Participant shall keep the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability Indemnitees reasonably informed as to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence status of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and Third Party Claim. After notice from an Indemnifying Participant to employ counsel at an Indemnitee of its own expense election to assist assume the defense of a Third-Party Claim, such Indemnifying Participant shall not be liable to such Indemnitees under this Section 3.02 for any legal or other expenses subsequently incurred by such Indemnitees in connection with the defense thereof other than those expenses referred to in the handling of such claimpreceding sentence; provided, however, that such Indemnitees shall have the employment right to employ one law firm as counsel, together with a separate local law firm in each applicable jurisdiction (Separate Counsel), to represent such Indemnitees in any action or group of related actions (which firm or firms shall be reasonably acceptable to the Indemnifying Participant) if, in such Indemnitees’ reasonable judgment at any time, either a conflict of interest between such Indemnitees and the Indemnifying Participant exists in respect of such counsel shall claim, or there may be at the expense of the Indemnifying Party if the Indemnified Party determines defenses available to such Indemnitees which are different from or in good faith that such participation is appropriate in light of defenses not addition to those available to the Indemnifying PartyParticipant and the representation of both parties by the same counsel would be inappropriate, conflicts of interest or other similar circumstances;
and in that event: (bi) the reasonable fees and expenses of such Separate Counsel shall be paid by the Indemnifying Participant (it being understood, however, that the Indemnifying Participant shall not be liable for the expenses of more than one Separate Counsel (excluding local counsel) with respect to any Third-Party Claim (even if against multiple Indemnitees)); and (ii) each of the Indemnifying Participant and the Indemnitees shall obtain have the right to conduct its own defense in respect of such claim. If an Indemnifying Participant elects not to defend against a Third Party Claim, or fails to notify an Indemnitee of its election as provided in this Section 3.02 within the period of ten (10) Business Days described above, the Indemnitees may defend, compromise, and settle such Third Party Claim and shall be entitled to indemnification hereunder (to the extent permitted hereunder), provided, however, that no such Indemnitee may compromise or settle any such Third-Party Claim without the prior written approval consent of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval Indemnifying Participant, which consent shall not to be unreasonably withheld);
, conditioned, or delayed. Notwithstanding the foregoing, the Indemnifying Participant shall not, without the prior written consent of the Indemnitees, (ci) no Indemnifying settle or compromise any Third-Party shall Claim or consent to the entry of any judgment or enter into any settlement that which does not include as an unconditional term thereof the giving delivery by each the claimant or plaintiff to each Indemnified Party the Indemnitees of a written release from all liability in respect of such claim; and
Third-Party Claim or (dii) the Indemnifying settle or compromise any Third-Party shall not Claim in any manner that would be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled reasonably likely to have sole control over, a Material Adverse Effect on the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredIndemnitees.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting Indemnitee will give such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify event not later than ten (10) calendar days after the Indemnifying Indemnitee's receipt of notice of such Third Party Claim. Such notice shall not relieve it from any liability describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has be en or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's own expense a nd by such Indemnifying Party's own counsel, and the Indemnitee will cooperate in good faith in such defense at the Indemnifying Party's expense.
(b) If within ten (10) calendar days after an Indemnitee provides written notice to the Indemnifying Party of any Third Party Claim the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 9.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) calendar days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable expenses thereof. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will be the Indemnified Party determines in good faith that amount of such participation is appropriate in light of defenses not available settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement date of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);notice.
(c) no Indemnifying Party shall consent to the entry Any claim by an Indemnitee on account of any judgment or enter into any settlement that an Indemnifiable Loss which does not include as an unconditional term thereof the result from a Third Party Claim (a "Direct Claim") will be asserted by giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event not be entitled to control later than ten (but shall be entitled to participate at its own expense in 10) calendar days after the defense of)Indemnitee becomes aware of such Direct Claim, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party will have a period of thirty (30) calendar days within which to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable respond to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesDirect Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party will be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its rights to indemnification under this Agreement.
(d) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the prime r ate then in effect of the defense Bank of Boston, N.A.), will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying Party will, to the extent of such claim indemnity payment, be subrogated to all right s of the Indemnitee against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided, however, that (i) the Indemnifying Party will then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against any such third party on account of said indemnity payment is hereby made expressly subordinated and subjected in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. Nothing in this Section 9.2(d) shall be construed to require any party hereto to obtain or maintain any insurance coverage.
(e) A failure to give timely notice as provided in this Section 7.39.2 will not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement (Eastern Edison Co)
Defense of Claims. If any legal proceedings shall be instituted or (a) Except as provided in Section 11.7, the following procedures will apply with respect to the defense and settlement of any claim is asserted made by any a third party that gives rise to a right on the part of an Indemnitee to be indemnified against resulting Losses in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity whole or in part under this Article 10 (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebya “Claim”). The Indemnifying Party shall have the right, at its option will be entitled to assume and expense, to participate in control the defense of any such proceeding Claim with counsel chosen by it and reasonably acceptable to the Indemnitee; provided, however, that Indemnifying Party will not be entitled to assume and control such defense (unless otherwise agreed to in writing by the Indemnitee) and will pay the reasonable fees and expenses of counsel retained by the Indemnitee if (i) the Claim for indemnification relates to or claimarises in connection with any criminal proceeding, but not to control (ii) the defenseClaim seeks an injunction or equitable relief against the Indemnitee which, negotiation if successful, would materially adversely affect the business, financial condition, assets or settlement thereofproperties of the Indemnitee, which control shall at all times rest with (iii) upon petition by the Indemnified PartyIndemnitee, unless the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Claim or (iiv) admits in writing its liability the Indemnitee reasonably believes that the Losses relating to the Indemnified Party hereunder with respect Claim could reasonably be expected to exceed the maximum amount that such proceeding or claim; and (ii) furnishes satisfactory evidence Indemnitee could then be entitled to recover under the applicable provisions of its financial ability to indemnify the Indemnified Party, in which casethis Article 10. Upon assuming such defense, the Indemnifying Party will have reasonable access to all documents and other information that may assume such control at its expense through counsel reasonably satisfactory be in the possession of another Party or an Indemnitee and to such Indemnified Party, and any employees of another Party or Indemnitee to the Indemnified Party will fully cooperate as extent reasonably requested by the Indemnifying Party in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Claim. Each other Party shall be entitled and each Indemnitee will have the right to participate in the such defense of such claim and to employ counsel at its own expense and will use commercially reasonable efforts to assist cooperate with the Indemnifying Party in connection with the handling defense, compromise or settlement of such claimany Claim, including making available all pertinent information and witnesses within its control at reasonable intervals during normal business hours. The Indemnifying Party will have the full right to enter into any compromise or settlement that is dispositive of any Claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if will not settle or compromise any Claim without the Indemnified Party determines in good faith that prior written consent of the Indemnitee, which consent will not be unreasonably withheld, delayed or conditioned, unless such participation is appropriate in light settlement does not involve any obligation of defenses not available to the Indemnifying Party, conflicts Indemnitee other than the payment of interest or other similar circumstances;
(b) money for which the Indemnifying Party shall obtain will indemnify the prior written approval Indemnitee and includes an unconditional release of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release Indemnitee from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesClaim. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3of, or if after so assuming, the Indemnified Indemnifying Party shall have fails to defend, any Claim, then the right to Indemnitee may defend such claim Claim in such manner as it the Indemnitee may reasonably deem appropriate (provided that the Indemnifying Party may participate in such defense at its own expense), and the cost and expense Indemnitee will thereafter promptly inform the Indemnifying Party of all material developments related thereto. The Indemnitee will not settle or compromise any Claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise materially prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise, but such settlement or compromise will promptly reimburse not be conclusive as to the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course existence or amount of the investigations liability of the Indemnifying Party to any Indemnitee or defense, as and when bills are received or expenses incurredany third party.
Appears in 1 contract
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any a party hereto may have an obligation to indemnify another partyseeks indemnification under ----------------- this Section 8.01, the such party asserting such right to indemnity (the "Indemnified Party") shall give written ----------------- notice to the other party from whom indemnity is sought (the "Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof within 30 days(if known and quantifiable), but any and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve it from the Indemnifying Party of its or his obligations hereunder except to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any liability that it may have to action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party other than to indemnity pursuant to this Section 8.01, the extent Indemnified Party shall promptly notify the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have of the rightsame in writing, at its option and expense, to participate specifying in detail the defense basis of such proceeding or claim, but not to control claim and the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless facts pertaining thereto and the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim and giving rise to employ counsel the Indemnified Party's claim for indemnification at its own expense expense, and at its option (subject to assist in the handling limitations set forth below) shall be entitled to appoint lead counsel of such claimdefense with reputable counsel reasonably acceptable to the Indemnified Party; providedprovided that, however, that as a condition precedent to the employment Indemnifying -------- Party's right to assume control of such counsel shall be at defense, it must first:
(i) enter into an agreement with the expense of Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party if agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available for all Losses relating to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(dii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and provided further that the Indemnifying Party shall not be entitled have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (but shall be entitled A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to participate at its own expense in the defense of), and which the Indemnified Party shall reasonably believes an adverse determination would be entitled detrimental to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of injure the Indemnified Party. After written notice 's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, the appropriate court rules that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same failed or is appropriate in light of defenses not available failing to the Indemnifying Party, conflicts of interest vigorously prosecute or other similar circumstancesdefend. If the Indemnifying Party does not is permitted to assume and control of the defense of such claim as provided in this Section 7.3and elects to do so, the Indemnified Party shall have the right to defend employ counsel separate from counsel employed by the Indemnifying Party in any such claim action and to participate in the defense thereof, but the fees and expenses of such manner as it may deem appropriate counsel employed by the Indemnified Party shall be at the cost and expense of the Indemnifying Party, and Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party will promptly reimburse in writing, or (b) the Indemnified Party therefore in accordance with this Section 7.3has been advised through a written opinion of counsel (a copy of which must be furnished to the Indemnifying Party) that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. The reimbursement If the Indemnifying Party shall control the defense of feesany such claim, costs and expenses required by this Section 7.3 the Indemnifying Party shall be made by periodic payments during obtain the course prior written consent of the investigations Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or defenseceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and when bills are received or expenses incurredobligations with respect to such claim, without prejudice.
Appears in 1 contract
Samples: Recapitalization Agreement (Anthony Crane Holdings Capital Corp)
Defense of Claims. 14.4.1 If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted by any third party in Third Party Claim against such Indemnitee, with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party shall have the rightreasonably prompt written notice thereof, at its option and expense, to participate but in the defense any event not later than thirty (30) calendar days after receipt of actual notice of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimClaim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party during the required notification period shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Section 14 to the extent that Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise); and provided, however, that the Indemnitee must, in any event, notify the Indemnifying Party prior to the Termination Date as required pursuant to Section 14.1 in order for such party to be indemnified. The Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof with counsel reasonably satisfactory to the Indemnitee. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof, provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within a reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and the Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses or claims that such participation is appropriate may be available to the Indemnitee that are in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such for the fees and disbursements of more than one counsel for all Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Parties in connection with any one proceeding or any similar or related proceedings arising from the defense same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim.
14.4.2 Any Direct Claim will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after the
14.4.3 If after the making of any Indemnification Payment, the amount of the Indemnifiable Loss to which such payment relates is reduced by recovery, settlement or otherwise under any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other than reasonable costs entity, the amount of investigation and such reduction (less any costs, expenses, premiums incurred in connection herewith) will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any Indemnification Payment, the Indemnifying Party will, to the extent of liaison counsel for such Indemnification Payment, be subrogated to all rights of the Indemnified PartyIndemnitee against any third party that is not an affiliate of the Indemnitee in respect to the Indemnifiable Loss to which the Indemnification Payment relates; provided, however, provided that (i) the Indemnifying Party shall then be liable for in compliance with its obligations under this Agreement in respect of such Legal Expenses if Indemnifiable Loss and (ii) until the Indemnified Party determines in good faith that the incurrence Indemnitee recovers full payment of the same is appropriate in light its Indemnifiable Loss, all claims of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control against such third party on account of said Indemnification Payment will be subrogated and subordinated in right of payment to the defense Indemnitee's rights against such third party. Without limiting the generality or effect of such claim as provided in any other provision of this Section 7.314, the Indemnified Party shall have the right to defend each such claim in such manner as it may deem appropriate at the cost Indemnitee and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse duly execute upon request all instruments reasonably necessary to evidence and perfect the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs above-described subrogation and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredsubordination rights.
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Samples: Asset Purchase Agreement (Northland Cable Properties Five LTD Partnership)
Defense of Claims. If any legal proceedings shall be instituted claim or any claim is asserted action by any a third party (a “Third Party Claim”) arises after the Closing Date and during the Survival Period for which (i) Seller may be liable to any Purchaser Indemnitee or (ii) Purchaser may be liable to any Seller’s Indemnitee (for purposes of this Section 9.3, Purchaser Indemnitees and Seller’s Indemnitees are sometimes referred to as “Indemnitee(s)” and, Seller and Purchaser are sometimes referred to as “Indemnitor(s)”, in respect each case, as the context requires), then in such event the affected Indemnitee(s) shall notify their Indemnitor(s) in writing within a reasonable time after such Third Party Claim arises and is known to such Indemnitee(s); provided that the Indemnitor(s) will be relieved of which any party hereto may have an obligation its indemnification obligations hereunder solely to indemnify another partythe extent that it is actually and materially prejudiced by the Indemnitee’s failure to provide such notice within a reasonable time after such Third Party Claim becomes known to Indemnitee(s). If Indemnitor(s) wish to assume the defense of such Third Party Claim, the party asserting such right to indemnity (the "Indemnified Party"then Indemnitor(s) shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof to Indemnitee(s) within 30 daystwenty (20) days after notice from Indemnitee(s) of such Third Party Claim (unless the Third Party Claim reasonably requires a response in less than twenty (20) days after the notice is given to the Indemnitor(s), but in which event they shall notify Indemnitee(s) at least five (5) days prior to such reasonably required response date), which notice shall constitute an acknowledgement by Indemnitor(s) that it shall provide indemnification to Indemnitee(s) for such Third Party Claim, and Indemnitor(s) shall thereafter assume the defense of any failure such Third Party Claim, through counsel reasonably satisfactory to so notify the Indemnifying Party Indemnitee(s); provided that Indemnitee(s) may participate in such defense at their own expense; and provided further that Indemnitor(s) shall not relieve it from in any liability that it may event have the right to control the defense of the Third Party Claim if: (I) Indemnitor fails to provide reasonable assurance to the Indemnified Indemnitee of its intent and ability to defend such claim or proceeding, including Indemnitor’s financial capacity to defend such claim (including the right of Indemnitor to call upon its members or equityholders pursuant to any guaranty or similar agreement); (II) the relief requested includes any injunctive or other equitable relief; (III) such claim involves any criminal action to which the Indemnitee is a party or is with respect to Taxes; or (IV) involves a claim that is reasonably likely to have a material adverse effect on the Indemnitee’s reputation, relations with one or more customer or supplier or future business prospects.
(a) If Indemnitor(s) do not or are not permitted to assume the defense of, or if after so assuming Indemnitor(s) fail to diligently defend any Third Party other than Claim, then Indemnitee(s) may defend against such Third Party Claim in such manner as they may deem appropriate (provided that Indemnitor(s) may participate in such defense at their own expense) and Indemnitee(s) may settle such Third Party Claim on such terms as they may deem reasonably appropriate, and Indemnitor(s) shall promptly reimburse Indemnitee(s) for the amount of all Losses reasonably incurred by Indemnitee(s) in connection with the defense against and settlement of such Third Party Claim. If no settlement of such Third Party Claim is made, Indemnitor(s) shall satisfy any judgment rendered with respect to the extent the Indemnifying such Third Party is actually prejudiced thereby. The Indemnifying Party shall have the rightClaim, at its option before Indemnitee(s) are required to do so, and expensepay all expenses, to participate legal or otherwise, reasonably incurred by Indemnitee(s) in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;Claim.
(b) the Indemnifying Party shall obtain the prior written approval If a judgment is rendered against any of the Indemnified Party before entering into Indemnitees in any settlement of such claim action covered by the indemnification hereunder, or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability lien in respect of such claim; and
judgment attaches to any of the assets of any of the Indemnitees, then Indemnitor(s) shall promptly upon such entry or attachment pay such judgment in full or discharge such lien, at the expense and direction of Indemnitor(s) as and when due, unless an appeal is taken under which the execution of the judgment or satisfaction of the lien is stayed (dand the Indemnitor(s) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense responsible for any bond required in the defense ofconnection therewith), . If and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of when a final judgment is rendered in any such action, the Indemnifying Party Indemnitor(s) shall not be liable forthwith pay such judgment or discharge such lien before any Indemnitee is compelled to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurreddo so.
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Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of such notice of such Third Party Claim. Such notice will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the rightright to participate in, at its option and expenseor, by giving written notice to the Indemnitee, to participate assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
(b) If, within ten (10) calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 5.3(a), an Indemnitee receives written notice - 40 - 45 from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 5.3(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of if the Indemnifying Party if fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) calendar days after receiving written notice from the Indemnified Party determines in good faith Indemnitee that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) Indemnitee believes the Indemnifying Party shall obtain has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnitee in respect of all Indemnifiable Losses relating to the matter, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the prior written approval consent of the Indemnified Indemnitee, the Indemnifying Party before entering will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such claim or ceasing offer, the Indemnifying Party will give written notice to defend against the Indemnitee to that effect. If the Indemnitee fails to consent to such claim firm offer within ten (with such approval not to be unreasonably withheld10);
(c) no Indemnifying Party shall consent to the entry Any claim by an Indemnitee on account of any judgment or enter into any settlement that an Indemnifiable Loss which does not include as an unconditional term thereof the result from a Third Party Claim (a "Direct Claim") will be asserted by giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall reasonably prompt written notice thereof, but in any event not be entitled to control later than twenty (but shall be entitled to participate at its own expense in 20) calendar days after the defense of)Indemnitee becomes aware of such Direct Claim, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party will have a period of twenty (20) calendar days within which to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable respond in writing to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesDirect Claim. If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.3twenty (20) calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore in accordance with Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredArticle VI.
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Defense of Claims. If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or Proceeding made or brought by any Person who is not a Party to this Agreement or any Affiliate of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party, the following terms and provisions shall apply:
9.1.8.1 The Indemnitee shall give written notice to the Indemnifying Party of any Third Party Claim which might give rise to a claim for indemnification, which notice shall state the nature and basis of the assertion and the amount thereof, to the extent known, provided, however, that no delay on the part of the Indemnitee in giving notice shall relieve the Indemnifying Party of any obligation to indemnify unless (and then solely to the extent that) the Indemnifying Party is asserted prejudiced by such delay and then only to the extent so prejudiced.
9.1.8.2 If any third party in Third Party Claim is brought against an Indemnitee with respect of to which any party hereto the Indemnifying Party may have an obligation to indemnify another partyindemnify, the party asserting Third Party Claim shall be defended by the Indemnifying Party and such right to indemnity (defense shall include all proceedings and appeals which counsel for the "Indemnified Party") Indemnitee shall give deem reasonably appropriate.
9.1.8.3 Notwithstanding the party from whom indemnity is sought (provisions of the "Indemnifying Party") written notice thereof within 30 daysprevious subsection, but any failure to so notify until the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in assumed the defense of any such proceeding or claimThird Party Claim, but not to control the defensedefense shall be handled by the Indemnitee. Furthermore, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability if the Indemnitee shall have reasonably concluded that there are likely to be defenses available to the Indemnified Party hereunder with respect Indemnitee that are different from or in addition to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
; (bii) if the Indemnifying Party shall obtain fails to provide the prior written approval Indemnitee with evidence reasonably acceptable to the Indemnitee that the Indemnifying Party has sufficient financial resources to defend and fulfill its indemnification obligation with respect to the Third Party Claims; (iii) if the Third Party Claim involves other than money damages and seeks injunctive or other equitable relief; (iv) the Third Party Claim involves a customer, competitor or a supplier of the Indemnified Party before entering into any settlement Business; or (v) if a judgment against the Indemnitee will, in the good faith opinion of such claim the Indemnitee, establish a custom or ceasing to defend against such claim (with such approval not to precedent which will be unreasonably withheld);
(c) no Indemnifying Party shall consent adverse to the entry best interests of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) its continuing business, the Indemnifying Party shall not be entitled to control (but assume the defense of the Third Party Claim and the defense shall be entitled handled by the Indemnitee. If the defense of the Third Party Claim is handled by the Indemnitee under the provisions of this subsection, the Indemnifying Party shall pay all legal and other expenses reasonably incurred by the Indemnitee in conducting such defense. Notwithstanding the foregoing, any product warranty claims pursuant to participate Section 8.9 that also trigger indemnification obligations under this Section 9 shall be defended utilizing a joint defense between Seller and Buyer, with Seller, as the Indemnifying Party, paying all costs of such joint defense.
9.1.8.4 In any Third Party Claim defended by the Indemnifying Party (i) the Indemnitee shall have the right to be represented by advisory counsel and accountants, at its own expense in expense, (ii) the defense of)Indemnifying Party shall keep the Indemnitee fully informed as to the status of such Third Party Claim at all stages thereof, whether or not the Indemnitee is represented by its own counsel, (iii) the Indemnifying Party shall make available to the Indemnitee, and its attorneys, accountants and other representatives, all books and records of the Indemnified Indemnifying Party relating to such Third Party Claim and (iv) the parties shall render to each other such assistance as may be entitled reasonably required in order to have sole control overensure the proper and adequate defense of the Third Party Claim.
9.1.8.5 In any Third Party Claim, the defense or party defending the same shall not make any settlement of any claim without the prior written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned. Without limiting the generality of the foregoing, it shall not be deemed unreasonable to the extent the claim seeks an order, injunction, non-monetary withhold consent to a settlement involving injunctive or other equitable relief against the Indemnified Party whichIndemnitee or its assets, if successful, could materially interfere with the employees or business, operations, assets, condition (financial or otherwise) relief which the Indemnitee reasonably believes could establish a custom or prospects of the Indemnified Party. After written notice by the Indemnifying Party precedent which will be adverse to the Indemnified Party best interests of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredcontinuing business.
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Defense of Claims. If any legal proceedings shall be instituted Each party entitled to indemnification under Section 6.1 or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity 6.2 (the "Indemnified Party") shall give notice to the party from whom indemnity is sought required to provide indemnification (the "Indemnifying Party") written notice thereof within 30 dayspromptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, but any failure to so notify and shall permit the Indemnifying Party shall not relieve it from to assume the defense of any liability such claim or any litigation resulting therefrom, provided that it may have to the Indemnified Party other than to the extent counsel for the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party Party, who shall have the right, at its option and expense, to participate in conduct the defense of such proceeding claim or claimlitigation, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to be approved by the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Partywhose approval shall not unreasonably be withheld), and the Indemnified Party will fully cooperate may participate in such defense at such party's expense, and provided further that the failure of any Indemnified Party to give notice as reasonably requested by provided herein shall not relieve the Indemnifying Indemnified Party in of its obligations under the defense or settlement of Agreement unless the failure to give such matter; providednotice is materially prejudicial to an Indemnified Party's ability to defend such action. Notwithstanding the foregoing, however, that:
(ai) if the Indemnified Party reasonably determines that there may be a conflict between the position of the Indemnified Party and of the Indemnified Party in connection with the defense of such action, suit, investigation, inquiry or other proceeding or that there may be legal defenses available to such Indemnified Party different from or in addition to those available to the Indemnified Party, then counsel for the Indemnified Party shall be entitled to conduct a defense to the extent reasonably determined by such counsel to be necessary to protect the interest of the Indemnified Party, and (ii) in any event, the Indemnified Party shall be entitled to have counsel chosen by such Indemnified Party participate in, but not to conduct, the defense. No Indemnified Party, in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (litigation, shall, except with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall the consent of each Indemnified Party, consent to the entry of any judgment or enter into any settlement that does not include as an a unconditional term thereof the giving by each the claimant or plaintiff to each such Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest claim or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredlitigation.
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Defense of Claims. If (a) The Indemnifying Party may elect to assume and control the defense of any legal proceedings shall be instituted or any claim is asserted by any third party in respect Claim, including the employment of which any party hereto may have an counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if: (i) the Indemnifying Party acknowledges its obligation to indemnify another party, the party asserting Indemnified Party for any Losses resulting from such right Claim; and (ii) the Claim does not seek to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but impose any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to Liability on the Indemnified Party other than money damages.
(b) If the conditions of Section 8.5(a) are satisfied and the Indemnifying Party elects to assume and control the defense of a Claim, then: (i) the Indemnifying Party will not be liable for any settlement of such Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the Indemnifying Party may settle such Claim without the consent of the Indemnified Party only if (A) all monetary damages payable in respect of the Claim are paid by the Indemnifying Party, (B) the Indemnified Party receives a full, complete and unconditional release in respect of the Claim without any admission or finding of obligation, liability, fault or guilt (criminal or otherwise) with respect to the extent Claim, and (C) no injunctive, extraordinary, equitable or other relief of any kind is imposed on the Indemnified Party or any of its Affiliates; (iii) the Indemnifying Party may otherwise settle such Claim only with the consent of the Indemnified Party, which consent will not unreasonably be withheld or delayed; and (iv) the Indemnified Party may employ separate counsel and participate in the defense thereof, but the Indemnified Party will be responsible for the fees and expenses of such counsel unless: (1) the Indemnifying Party has failed to adequately assume and actively conduct the defense of such Claim or to employ counsel with respect thereto; or (2) in the reasonable opinion of the Indemnified Party, a conflict of interest exists between the interests of the Indemnified Party and the Indemnifying Party that requires representation by separate counsel, in which case the fees and expenses of such separate counsel will be paid by the Indemnifying Party.
(c) If the conditions of Section 8.5(a) are not satisfied, the Indemnified Party may assume the exclusive right to defend, compromise or settle such Claim, but the Indemnifying Party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld); provided, that the Indemnified Party will not be required to obtain any consent of the Indemnifying Party to the determination of such Claim (and will not prejudice its right to be indemnified with respect to such Claim by settling such Claim) if the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability asserting that it has no obligation to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.
Appears in 1 contract
Samples: Purchase Agreement (Rex Energy Corp)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a party to this Agreement (a "THIRD PARTY CLAIM") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) calendar days after the Indemnitee' s receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. -The Indemnifying Party will have the right to indemnity (participate in or, by giving written notice to the "Indemnified Party") shall give Indemnitee, to elect to assume the party from whom indemnity is sought (the "defense of any Third Party Claim at such Indemnifying Party"'s own expense and by such Indemnifying Party's own counsel, and the Indemnitee will cooperate in good faith in such defense at such Indemnitee's own expense.
(b) If within ten (10) calendar days after an Indemnitee provides written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it of any Third Party Claim the Indemnitee receives written notice from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The that such Indemnifying Party shall have the right, at its option and expense, has elected to participate in assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless last sentence of Section 9.2(a). the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; thereof: provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) calendar days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable expenses thereof. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any -settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will be the Indemnified Party determines in good faith that amount of such participation is appropriate in light of defenses not available settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement date of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);notice.
(c) no Indemnifying Party shall consent to the entry Any claim by an Indemnitee on account of any judgment or enter into any settlement that an Indemnifiable Loss which does not include as an unconditional term thereof the result from a Third Party Claim (a "DIRECT CLAIM") will be asserted by giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event not be entitled to control later than ten (but shall be entitled to participate at its own expense in 10) calendar days after the defense of)Indemnitee becomes aware of such Direct Claim, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party will have a period of thirty (30) calendar days within which to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable respond to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesDirect Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party will be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its rights to indemnification under this Agreement.
(d) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other entity, 42 44 the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the prime rate then in effect of the defense Bank of Boston, N.A.), will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying Party will, to the extent of such claim indemnity payment, be surrogated to all rights of the Indemnitee against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided, however, that (i) the Indemnifying Party will then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against any such third party on account of said indemnity payment is hereby made expressly subordinated and subjected in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. Nothing in this Section 9.2(d) shall be construed to require any party hereto to obtain or maintain any insurance coverage.
(e) A failure to give timely notice as provided in this Section 7.39.2 will not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right party which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of such notice of such Third Party Claim. Such notice will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the rightright to participate in, at its option and expenseor, by giving written notice to the Indemnitee, to participate assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
(b) If, within 10 calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 8.4(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.4(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses legal expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.Indemnitee in
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives written notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim affiliate of a party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting Indemnitee will give such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify event not later than thirty (30) calendar days after the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense Indemnitee's receipt of notice of such proceeding Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or claim, but not to control may be sustained by the defense, negotiation or settlement thereof, which control Indemnitee.
(b) The party defending the Third Party Claim shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to consult with the Indemnified other throughout the pendency of the Third Party hereunder with respect to such proceeding Claim regarding the investigation, defense, settlement, compromise, trial, appeal or claimother resolution thereof; and (ii) furnishes satisfactory evidence afford the other party the opportunity, by notice, to participate and be associated in the defense of any Third Party Claim through counsel chosen by such other party, at its financial ability to indemnify the Indemnified Partyown expense, in the defense of any Third Party Claim as to which case, a party has elected to conduct and control the defense thereof. The parties shall cooperate in the defense of any Third Party Claim. The Indemnitee shall make available to the Indemnifying Party may assume such control at or its expense through counsel representatives all records and other materials reasonably satisfactory required for use in contesting any Third Party Claim (subject to such Indemnified Partyconfidentiality provisions as the Indemnitee may reasonably require) and shall furnish such testimony and attend such conferences, discovery proceedings, hearings, trials and the Indemnified Party will fully cooperate appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If requested by the defense Indemnifying Party, the Indemnitee shall cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest or, if appropriate, in making any counterclaim against the Person asserting the claim or settlement demand, or any cross-complaint against any Person. The Indemnifying Party shall reimburse the Indemnitee for any expenses incurred by Indemnitee in cooperating with or acting at the request of such matter; provided, however, that:the Indemnifying Party.
(ac) If within ten (10) calendar days after an Indemnitee provides written notice to the Indemnified Indemnifying Party shall be entitled of any Third Party Claim the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to participate in assume the defense of such claim and to employ counsel at its own expense to assist Third Party Claim as provided in the handling last sentence of such claimSection 9.2(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) calendar days (unless waiting twenty (20) calendar days would prejudice the Indemnitee's rights) after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable expenses thereof. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of (a) any Third Party Claim with respect to Income Taxes or (b) any other Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer (other than with respect to Income Taxes) within ten (10) calendar days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will be the Indemnified Party determines in good faith that amount of such participation is appropriate in light of defenses not available settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the Indemnifying Partydate of such notice. Notwithstanding the foregoing, conflicts the Indemnitee shall have the right to pay, compromise, or settle any Third Party Claim (other than with respect to Income Taxes) at any time, provided that in such event the Indemnitee shall waive any right to indemnity hereunder unless the Indemnitee shall have first sought the consent of interest or other similar circumstances;
(b) the Indemnifying Party in writing to such payment, settlement or compromise and such consent was unreasonably withheld or delayed, in which event no claim for indemnity therefor hereunder shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; andwaived.
(d) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") will be asserted by giving the Indemnifying Party shall reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event not be entitled to control later than thirty (but shall be entitled to participate at its own expense in 30) calendar days after the defense of)Indemnitee becomes aware of such Direct Claim, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party will have a period of thirty (30) calendar days (unless waiting thirty (30) days would prejudice the Indemnitee's rights, in which case such period as would likely not prejudice the Indemnitee's rights, but in no event less than ten (10) days) within which to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable respond to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesDirect Claim. If the Indemnifying Party does not assume control of the defense of respond within such claim as provided in this Section 7.3thirty (30) calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have accepted such Direct Claim. If the Indemnified Indemnifying Party therefore in accordance with rejects such Direct Claim, the Indemnitee will be free to seek enforcement of its rights to indemnification under this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredAgreement.
Appears in 1 contract
Defense of Claims. If a claim for Losses (a “Claim”) is to be made by a Buyer Indemnified Person or a Seller Indemnified Person (an “Indemnified Party”), such Indemnified Party shall give notice (a “Claim Notice”) to (i) Seller, in the case of an indemnification claim pursuant to Section 9.2(a) or (ii) Buyer, in the case of an indemnification claim pursuant to Section 9.2(b) (“Indemnifying Party”), in either case as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which may give rise to Losses for which indemnification may be sought under this Article IX. If any legal proceedings Proceeding is filed or instituted making a claim against any Indemnified Party with respect to a matter subject to indemnity hereunder, notice thereof shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation given to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party as promptly as practicable; however, the failure of any Indemnified Party to give timely notice hereunder shall not relieve it from any liability that it may have affect rights to the Indemnified Party other than indemnification hereunder, except to the extent the Indemnifying Party is actually prejudiced therebyby such failure (to the extent determined by a court of competent jurisdiction). The After receipt of such a notice of a Proceeding, the Indemnifying Party shall have the right, at right to defend the Indemnified Party against the Proceeding with counsel of its option and expense, choice reasonably satisfactory to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability nature of the claim creates an ethical conflict for the same counsel to represent the Indemnified Party hereunder and the Indemnifying Party, so long as (a) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Claim or Proceeding that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Losses the Indemnified Party may suffer caused by the Claim or raised in the Proceeding, (b) the Indemnifying Party provides the Indemnified Party with respect evidence that the Indemnifying Party will have the financial resources to such proceeding or claim; defend against the Proceeding and fulfill its indemnification obligations hereunder, and (iic) furnishes satisfactory evidence the Indemnifying Party conducts the defense of its financial ability to indemnify the Proceeding actively and diligently. The Indemnifying Party shall not compromise or settle such Proceeding without the written consent of the Indemnified Party, unless (x) the Indemnified Party is not obligated to perform or to refrain from performing any act under such compromise or settlement, there is no encumbrance on any assets of the Indemnified Party and there is no injunctive or other non-monetary relief; (y) there is no finding or admission of any violation of any Legal Requirement, violation of the rights of any Person by the Indemnified Party or any other liability of the Indemnified Party to any Person; and (z) the Indemnified Party receives, as a part of such compromise or settlement, a complete, general and unconditional release in which case, the Indemnifying Party may assume such control at its expense through counsel form and substance reasonably satisfactory to such the Indemnified Party, and . In all other cases the Indemnified Party will fully cooperate as reasonably requested may defend the Claim or Proceeding with counsel of its choosing at the expense of the Indemnifying Party. The Indemnified Party may, at its own cost, participate in the investigation, trial and defense of any such Proceeding defended by the Indemnifying Party and any appeal arising therefrom. The parties shall cooperate with each other in connection with any defense and in any notifications to insurers. If the Indemnifying Party fails to promptly and diligently assume the defense of such Proceeding after receipt of notice hereunder, the Indemnified Party against which such Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense Proceeding with counsel of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be choosing at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to and the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate participate therein at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredits own cost.
Appears in 1 contract
Defense of Claims. If any legal proceedings No right to indemnification under this Article X shall be instituted or any claim is asserted by any third party in respect of which available to any party hereto may have an obligation otherwise entitled to indemnify another party, the party asserting such right to indemnity indemnification (the "Indemnified Party") shall give ), unless such Indemnified Party gives to the party from whom indemnity is sought obligated to provide indemnification to such Indemnified Party (the "Indemnifying PartyIndemnitor") written a notice thereof within 30 days, (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly after the receipt of knowledge of the facts upon which such claim is based (but in no event later than ten (10) days prior to the time any response to the asserted claim is required); except that the failure of any Indemnified Party to so notify the Indemnifying Party shall Indemnitor will not relieve it the Indemnitor from any liability that it may have to the Indemnified Party other than if and to the extent the Indemnifying Party Indemnitor is actually not prejudiced therebyby such omission. The Indemnifying Party shall have Upon receipt by the right, at its option and expense, to participate in the defense Indemnitor of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the a Claim Notice from an Indemnified Party hereunder with respect to any claim of a third party, such proceeding or claim; Indemnitor may control negotiations towards the resolution of any such claim without the necessity for litigation, and, if litigation ensues, assume the defense thereof at such Indemnitor's cost and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through with counsel reasonably satisfactory to such the Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party extend reasonable cooperation in the defense or settlement of prosecution thereof and will furnish such matter; providedrecords, howeverinformation and testimony and attend all such conferences, that:
(a) the discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. The Indemnified Party shall be entitled to participate in will have the defense of such claim and right to employ counsel at its own expense to assist counsel in any such case, but the handling of such claim; provided, however, that the employment fees and expenses of such counsel shall will be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith unless (i) the Indemnitor does not promptly employ counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action or (ii) such Indemnified Party reasonably concludes, based upon the opinion of its outside legal counsel, that such participation is appropriate in light of there may be one or more legal defenses not available to it, or to any other Indemnified Party who has submitted a Claim Notice to the Indemnitor, which are different from or additional to those available to the Indemnifying PartyIndemnitor, conflicts in either of interest or other similar circumstances;
which events such reasonable fees and expenses will be borne by the Indemnitor (b) but in no event will the Indemnifying Party shall obtain Indemnitor be required to pay the prior written approval fees and expenses of the more than one counsel employed by more than one Indemnified Party before entering into with respect to any settlement of such claim or ceasing claim) and the Indemnitor will not have the right to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to direct the entry defense of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects action on behalf of the Indemnified Party. After written notice by The Indemnitor will have the Indemnifying right, in its sole discretion, to settle any claim for monetary damages for ^ ^ which indemnification has been sought and is available hereunder, except that neither Indemnitor nor the Indemnified Party will settle, compromise or make any disposition of any claim under this Article X which would or may result in liability to the Indemnified Party or Indemnitor, respectively, without the written consent of its election to assume control of the defense of any such actionIndemnitee or Indemnitor, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredrespectively.
Appears in 1 contract
Samples: Merger Agreement (X Ceed Inc)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under Article X of this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third Party Claim. Such notice by the Indemnitee will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the rightright to participate in, at its option and expenseor, by giving written notice to the Indemnitee, to participate assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
(b) If, within twenty calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 10.4(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 10.4(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of if the Indemnifying Party if fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty calendar days after receiving written notice from the Indemnified Party determines in good faith Indemnitee that such participation is appropriate in light of defenses not available to the Indemnitee believes the Indemnifying PartyParty has failed to take such steps, conflicts the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the prior written consent of interest or other similar circumstances;
the Indemnitee if an Indemnifying Party assumes the defense of any Third Party Claim, (bi) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering not enter into any settlement of such claim any Third Party Claim which would lead to liability or ceasing create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to defend against such claim indemnification hereunder or (with such approval not to be unreasonably withheld);
(cii) no Indemnifying Party shall settle, compromise or consent to the entry of any judgment with respect to such claim unless such settlement, compromise or enter into consent imposes no finding or admission of any settlement that does not include as an unconditional term thereof violation or fault with respect to any Healthcare Fraud Law. If a firm offer is made to settle a Third Party Claim, (x) without leading to liability or the giving by each claimant or plaintiff to each Indemnified Party creation of a release from all liability in respect financial or other obligation on the part of such claim; and
(d) the Indemnifying Party shall Indemnitee for which the Indemnitee is not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party indemnification hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.and
Appears in 1 contract
Samples: Stock Purchase Agreement (Edwards Lifesciences Corp)
Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third party in Third Party (a “Third Party Claim”) against such Indemnitee, with respect of to which any party hereto may have an obligation Indemnifying Party is obligated to indemnify another partyprovide indemnification under this Agreement, the party asserting Indemnitee will give such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any event not later than ten (10) calendar days after receipt of notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to so notify the Indemnifying Party shall not only relieve it the Indemnifying Party from any liability that it may have its obligation to indemnify the Indemnified Party other than Indemnitee pursuant to this Article VIII to the extent that the Indemnifying Party is actually materially prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of by such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party failure (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate whether as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense a result of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light forfeiture of substantive rights or defenses not available to the Indemnifying Party, conflicts or otherwise). Upon receipt of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party notification of a release from all liability in respect of such claim; and
(d) the Indemnifying Third Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionClaim, the Indemnifying Party shall not be liable entitled, upon written notice to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of Indemnitee, to assume the investigation and of liaison counsel for the Indemnified Partydefense thereof; provided, however, that the Indemnifying Party shall be liable for not have the right to control the defense unless and until the Indemnifying Party agrees in writing to indemnify the Indemnitee with respect to such Legal Expenses if Third Party Claim, subject to the Indemnified applicable limitations set forth herein. Whether or not the Indemnifying Party determines elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in good faith the investigation and defense thereof; provided, however, that the incurrence Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the same is appropriate employment of such separate counsel has been specifically authorized in light writing by the Indemnifying Party, (ii) the Indemnifying Party has failed to assume the defense of such Third Party Claim within a reasonable time after receipt of notice thereof, or (iii) the named parties to the proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses not that are in conflict with those available to the Indemnifying Party. Notwithstanding the foregoing, conflicts the Indemnifying Party shall not be liable for the fees and disbursements of interest more than one counsel for all Indemnitees in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other similar circumstancesobligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant (which offer provides for a full and unconditional release of the Indemnitee), and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party’s willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (1) the amount of the settlement offer that the Indemnitee declined to accept plus the Indemnifiable Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or (2) the aggregate Indemnifiable Losses of the Indemnitee with respect to such claim.
(b) Any claim by an Indemnitee on account of an Indemnifiable Loss that does not result from a Third Party Claim will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after the incurrence thereof, provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article VIII to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). The Indemnifying Party will have a period of 30 calendar days within which to respond in writing to such claim. If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.3thirty (30) calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore in accordance with Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Section 7.3. The reimbursement Article VIII.
(c) If, after the making of feesany Indemnification Payment, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course amount of the investigations Indemnifiable Loss to which such payment relates is reduced by actual recovery, settlement or defenseotherwise under any insurance coverage, as or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction (less any costs, expenses, premiums or Taxes incurred in connection therewith) will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any Indemnification Payment, the Indemnifying Party will, to the extent of such Indemnification Payment, be subrogated to all rights of the Indemnitee against any third party that is not an Affiliate of the Indemnitee in respect of the Indemnifiable Loss to which the Indemnification Payment relates; provided that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss, and when bills are received (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, all claims of the Indemnifying Party against any such third party on account of said Indemnification Payment will be subrogated and subordinated in right of payment to the Indemnitee’s rights against such third party. Without limiting the generality or expenses incurredeffect of any other provision of this Article VIII, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
Appears in 1 contract
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any a party hereto may have an obligation to indemnify another partyseeks indemnification under ----------------- this Section 8.01, the such party asserting such right to indemnity (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party from whom indemnity is sought (the "Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof within 30 days(if known and quantifiable), but any and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve it from the Indemnifying Party of its or his obligations hereunder except to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any liability that it may have to action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party other than to indemnity pursuant to this Section 8.01, the extent Indemnified Party shall ------------ promptly notify the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have of the rightsame in writing, at its option and expense, to participate specifying in detail the defense basis of such proceeding or claim, but not to control claim and the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless facts pertaining thereto and the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim and giving rise to employ counsel the Indemnified Party's claim for indemnification at its own expense expense, and at its option (subject to assist in the handling limitations set forth below) shall be entitled to appoint lead counsel of such claimdefense with reputable counsel reasonably acceptable to the Indemnified Party; providedprovided that, however, that as a condition precedent to the employment Indemnifying -------- Party's right to assume control of such counsel shall be at defense, it must first:
(i) enter into an agreement with the expense of Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party if agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available for all Losses relating to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(dii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and provided further that the Indemnifying Party shall not be entitled have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (but shall be entitled A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to participate at its own expense in the defense of), and which the Indemnified Party shall reasonably believes an adverse determination would be entitled detrimental to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of injure the Indemnified Party. After written notice 's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, the appropriate court rules that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same failed or is appropriate in light of defenses not available failing to the Indemnifying Party, conflicts of interest vigorously prosecute or other similar circumstancesdefend. If the Indemnifying Party does not is permitted to assume and control of the defense of such claim as provided in this Section 7.3and elects to do so, the Indemnified Party shall have the right to defend employ counsel separate from counsel employed by the Indemnifying Party in any such claim action and to participate in the defense thereof, but the fees and expenses of such manner as it may deem appropriate counsel employed by the Indemnified Party shall be at the cost and expense of the Indemnifying Party, and Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party will promptly reimburse in writing, or (b) the Indemnified Party therefore in accordance with this Section 7.3has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. The reimbursement If the Indemnifying Party shall control the defense of feesany such claim, costs and expenses required by this Section 7.3 the Indemnifying Party shall be made by periodic payments during obtain the course prior written consent of the investigations Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or defenseceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and when bills are received or expenses incurredobligations with respect to such claim, without prejudice.
Appears in 1 contract
Defense of Claims. If any legal proceedings shall be instituted Any SkyWay Indemnitee or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity SWYC Indemnitee (the "Indemnified Party") seeking indemnification under this Agreement shall give to the party from whom indemnity is sought obligated to provide indemnification to such Indemnified Party (the "Indemnifying PartyIndemnitor") written a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly upon learning of the existence of such claim. Upon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, such Indemnitor may assume the defense thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have with counsel reasonably satisfactory to the Indemnified Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other than to expenses related thereto; and the extent Indemnified Party shall cooperate in the Indemnifying defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. If the Indemnitor does not assume the defense thereof within ten days of its receipt of the Claim Notice, the Indemnitor shall similarly cooperate with the Indemnified Party is actually prejudiced therebyin such defense or prosecution. The Indemnifying Indemnified Party shall have the right, at its option and expense, right to participate in the defense or prosecution of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder any lawsuit with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify which the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in Indemnitor has assumed the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in counsel therein, but the handling of such claim; provided, however, that the employment fees and expenses of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
unless (bi) the Indemnifying Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party shall obtain the prior written approval to take charge of the Indemnified Party before entering into any settlement defense of such claim or ceasing to defend against action, (ii) such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement reasonably concluded that there exists a significant conflict of any claim interest with respect to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects conduct of the such Indemnified Party. After written notice 's defense by the Indemnifying Party Indemnitor, or (iii) the Indemnitor fails to provide reasonable insurance to the Indemnified Party of its election financial capacity to assume control defend such action and provide indemnification with respect to such action, in any of which events such reasonable fees and expenses shall be borne by the Indemnitor and the Indemnitor shall not have the right to direct the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs action on behalf of investigation and of liaison counsel for the Indemnified Party; provided. The Indemnitor shall have the right, howeverin its sole discretion, to settle any claim (a) which is solely for monetary damages for which indemnification has been sought and is available hereunder, and (b) where there is no finding or admission of any violation of any legal requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, provided that the Indemnifying Party Indemnitor shall be liable for such Legal Expenses if not agree to the settlement of any claim which constitutes the subject of a Claim Notice which settlement in the reasonable opinion of the Indemnified Party determines in good faith that would have a material adverse continuing effect on the incurrence business of the same is appropriate in light Indemnified Party without the prior written consent of defenses not available the Indemnified Party. The Indemnified Party shall give written notice to the Indemnifying PartyIndemnitor of any proposed settlement of any suit, conflicts of interest or other similar circumstances. If which settlement the Indemnifying Party does not assume control of Indemnitor may, if it shall have assumed the defense of the suit, reject in its reasonable judgment within 10 days of receipt of such claim as provided in this Section 7.3, notice. Notwithstanding the foregoing the Indemnified Party shall have the right to defend pay or settle any suit for which indemnification has been sought and is available hereunder, provided that, if the defense of such claim in such manner as it may deem appropriate at shall have been assumed by the cost and expense of the Indemnifying PartyIndemnitor, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall automatically be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurreddeemed to have waived any right to indemnification hereunder.
Appears in 1 contract
Samples: Merger Agreement (Skyway Communications Holding Corp)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives written notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim affiliate of a party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting Indemnitee will give such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify event not later than thirty (30) calendar days after the Indemnifying Indemnitee's receipt of notice of such Third Party Claim. Such notice shall not relieve it from any liability describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Indemnitee.
(b) The party defending the Third Party Claim shall (a) consult with the other than to throughout the extent pendency of the Indemnifying Third Party is actually prejudiced thereby. The Indemnifying Party shall have Claim regarding the rightinvestigation, at its option defense, settlement, compromise, trial, appeal or other resolution thereof; and expense(b) afford the other party the opportunity, by notice, to participate and be associated in the defense of any Third Party Claim through counsel chosen by such proceeding or claimother party, but not at its own expense, in the defense of any Third Party Claim as to which a party has elected to conduct and control the defense, negotiation or settlement defense thereof, which control . The parties shall at all times rest with cooperate in the Indemnified Party, unless defense of any Third Party Claim. The Indemnitee shall make available to the Indemnifying Party or its representatives all records and other materials reasonably required for use in contesting any Third Party Claim (i) admits in writing its liability to the Indemnified Party hereunder with respect subject to such proceeding or claim; confidentiality provisions as the Indemnitee may reasonably require) and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Partyshall furnish such testimony and attend such conferences, in which casediscovery proceedings, the Indemnifying Party hearings, trials and appeals as may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as be reasonably requested by the Indemnifying Party in connection therewith. If requested by the defense Indemnifying Party, the Indemnitee shall cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest or, if appropriate, in making any counterclaim against the Person asserting the claim or settlement demand, or any cross-complaint against any Person. The Indemnifying Party shall reimburse the Indemnitee for any expenses incurred by Indemnitee in cooperating with or acting at the request of such matter; provided, however, that:the Indemnifying Party.
(ac) If within ten (10) calendar days after an Indemnitee provides written notice to the Indemnified Indemnifying Party shall be entitled of any Third Party Claim the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to participate in assume the defense of such claim and to employ counsel at its own expense to assist Third Party Claim as provided in the handling last sentence of such claimSection 9.2(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) calendar days (unless waiting twenty (20) calendar days would prejudice the Indemnitee's rights) after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable expenses thereof. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of (a) any Third Party Claim with respect to Income Taxes or (b) any other Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer (other than with respect to Income Taxes) within ten (10) calendar days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will be the Indemnified Party determines in good faith that amount of such participation is appropriate in light of defenses not available settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the Indemnifying Partydate of such notice. Notwithstanding the foregoing, conflicts the Indemnitee shall have the right to pay, compromise, or settle any Third Party Claim (other than with respect to Income Taxes) at any time, provided that in such event the Indemnitee shall waive any right to indemnity hereunder unless the Indemnitee shall have first sought the consent of interest or other similar circumstances;
(b) the Indemnifying Party in writing to such payment, settlement or compromise and such consent was unreasonably withheld or delayed, in which event no claim for indemnity therefor hereunder shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; andwaived.
(d) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") will be asserted by giving the Indemnifying Party shall reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event not be entitled to control later than thirty (but shall be entitled to participate at its own expense in 30) calendar days after the defense of)Indemnitee becomes aware of such Direct Claim, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party will have a period of thirty (30) calendar days (unless waiting thirty (30) days would prejudice the Indemnitee's rights, in which case such period as would likely not prejudice the Indemnitee's rights, but in no event less than ten (10) days) within which to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable respond to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesDirect Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party will be deemed to have accepted such Direct Claim. If the Indemnifying Party rejects such Direct Claim, the Indemnitee will be free to seek enforcement of its rights to indemnification under this Agreement.
(e) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the prime rate then in effect of the defense Chase Manhattan Bank), will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying Party will, to the extent of such claim indemnity payment, be subrogated to all rights of the Indemnitee against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided, however, that (i) the Indemnifying Party will then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against any such third party on account of said indemnity payment is hereby made expressly subordinated and subjected in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. Nothing in this Section 9.2(e) shall be construed to require any party hereto to obtain or maintain any insurance coverage.
(f) A failure to give timely notice as provided in this Section 7.39.2 will not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right party which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Defense of Claims. 1. If any legal proceedings shall party entitled to be instituted indemnified under this Agreement (an "Indemnitee") receives notice of assertion or commencement of any claim is asserted claim, action or proceeding made or brought by any third person or entity who or which is not a party in to this Agreement or an affiliate of a party to this Agreement (a "Third Party Claim") against such Indemnitee with respect of to which any party hereto may have person or entity required to provide indemnification under this Agreement (an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify event not later than (30) calendar days after receipt of such Third Party Claim. Such notice will describe the Indemnifying Third Party shall not relieve it from any liability Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the indemnifiable loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the rightright to participate in, at its option and expenseor, by giving written notice to the Indemnitee, to participate assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
2. If, within (ten) calendar days after giving notice of a Third Party Claim to an Indemnifying Party, an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseClaim, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten calendar days after receiving written notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnitee in respect of all indemnifiable losses relating to the matter, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten calendar days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will not exceed the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement amount of such claim settlement offer, plus costs and expenses paid or ceasing incurred by the Indemnitee through the end of such ten calendar day period.
3. A failure to defend against such claim (with such approval give timely notice or to include any specified information in any notice will not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to affect the entry rights or obligations of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), party hereunder except and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim only to the extent the claim seeks an orderthat, injunctionas a results of such failure, non-monetary any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects was otherwise damaged as a result of the Indemnified Partysuch failure.
4. After written notice by the The Indemnifying Party will have a period of 30 calendar days within which to the Indemnified respond in writing to any claim by an Indemnitee on account of an indemnifiable loss which does not result from a Third Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesClaim (a "Direct Claim"). If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.330 calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall Indemnitee will be made by periodic payments during free to pursue such remedies as may be available to the course of the investigations or defense, as and when bills are received or expenses incurredIndemnitee.
Appears in 1 contract
Samples: Administrative Services Agreement (Central Reserve Life Corp)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than ten (10) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement.
(i) If, unless within ten (10) calendar days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(ii) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying 95 Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or other similar circumstancesincurred by Indemnitee up to the date of said notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than ten (10) calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of thirty (30) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the publicly announced prime rate then in effect of Chase Manhattan Bank) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Electric Co)
Defense of Claims. 10.4.1 If any legal proceedings shall be instituted Indemnitee receives notice of assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee shall give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of such notice of such Third Party Claim. Such notice must describe the Third Party Claim in reasonable detail, include copies of all material written evidence thereof and indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or might be sustained by the Indemnitee. The Indemnifying Party may participate in, or, by giving written notice to the Indemnitee, assume, the defense of any Third Party Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee shall have cooperate in good faith in such defense.
10.4.2 If, within ten calendar days after giving notice of a Third Party Claim to an Indemnifying Party under Section 10.4.1, an Indemnitee receives written notice from the right, at its option and expense, Indemnifying Party that the Indemnifying Party has elected to participate in assume the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate Claim as reasonably requested by the Indemnifying Party provided in the defense or settlement last sentence of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionSection 10.4.1, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently legal expenses incurred by such Indemnified Party the Indemnitee in connection with the defense thereof other than reasonable costs after receipt of investigation and of liaison counsel for the Indemnified Partysuch written notice; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten calendar days after receiving written notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnitee in respect of all Indemnifiable Losses relating to the matter, the Indemnitee may assume its own defense, and the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses paid or incurred in connection therewith. Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same is appropriate in light of defenses not available to the Indemnifying PartyIndemnitee, conflicts of interest or other similar circumstances. If the Indemnifying Party does shall not assume control enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the defense of such claim Indemnitee for which the Indemnitee is not entitled to indemnification hereunder.
10.4.3 A failure to give timely notice or to include any specified information in any notice as provided in this Section 7.3Sections 10.4.1 or 10.4.2 will not affect the rights or obligations of any party hereunder except and only to the extent that, the Indemnified Party shall have the as a result of such failure, any party that was entitled to receive such notice was deprived of its right to defend recover any payment under its applicable insurance coverage or was otherwise damaged as a result of such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Defense of Claims. If (a) Should any legal proceedings shall be instituted claim, action or any claim is asserted proceeding by any or involving a third party in respect of arise after the Closing Date for which any party hereto may have an obligation to indemnify another party(the “Indemnifying Party”) is liable for indemnification under the terms of this Agreement, the other party asserting such right to indemnity (the "“Indemnified Party"”) shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have within a reasonable time after such claim, action or proceeding arises and is known to the Indemnified Party other than (provided that the failure to give timely notice shall not affect the right to indemnification hereunder except to the extent that the Indemnifying Party is actually damaged or prejudiced thereby. The by such delay), and if the Indemnifying Party shall have admit in writing its potential indemnification obligation in respect thereof, the rightIndemnified Party shall give the Indemnifying Party a reasonable opportunity:
(i) to take part in any examination of the books and records;
(ii) to conduct any proceedings or negotiations in connection therewith as necessary or appropriate to defend the Indemnified Party or prosecute any claim, action, counterclaim or other proceeding with respect thereto;
(iii) to take all other required steps or proceedings to settle or defend any such claim, action or proceeding; and
(iv) to employ counsel to contest any such claim, action or proceeding in the name of the Indemnified Party or otherwise. The expenses of all proceedings, contests or lawsuits with respect to such claims or actions shall be borne by the Indemnifying Party. If the Indemnifying Party wishes to assume the defense and/or settlement of any such claim or action, it shall give written notice to the Indemnified Party admitting the possibility of its indemnification obligation in respect thereof and stating that it intends to assume such defense within 15 days after notice from the Indemnified Party of such claim or action (unless the claim or action reasonably requires a response in less than 15 days after notice thereof is given to the Indemnifying Party, in which event it shall notify the Indemnified Party at its option least five days prior to such reasonably required response date), and expense, to participate in the Indemnifying Party shall thereafter assume the defense of such proceeding claim or claimaction, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to the Indemnified Party; provided that the Indemnified Party may participate in any such defense at its own expense. The Indemnified Party shall afford the Indemnifying Party’s counsel and other authorized representatives reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Indemnified Party, and to the personnel of the Indemnified Party will fully Party, and shall otherwise use all reasonable efforts to cooperate as reasonably requested by with the Indemnifying Party, such counsel and such other authorized representatives in connection with the exercise of the rights of the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled pursuant to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthis Section 9.06; provided, however, that the employment of such counsel shall be at the expense of prior to the Indemnifying Party if entering into any settlement arrangement it must first acknowledge its obligation to indemnify the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;.
(b) If the Indemnifying Party shall obtain not assume the prior written approval of defense of, or if after so assuming it shall fail to actively defend, any such claim or action, the Indemnified Party before entering into may defend against any such claim or action in such manner as it may deem appropriate, and the Indemnified Party may settle such claim or action on such terms as it may deem appropriate, and the Indemnifying Party promptly shall reimburse the Indemnified Party for the amount of such settlement and for all expenses, legal and otherwise, reasonably and necessarily incurred by the Indemnified Party in connection with the defense against and settlement of such claim or ceasing action. If no settlement of such claim or action is made, the Indemnifying Party shall satisfy any judgment rendered with respect to defend such claim or in such action, before the Indemnified Party is required to do so, and pay all expenses, legal or otherwise, reasonably and necessarily incurred by the Indemnified Party in the defense against such claim (with such approval not to be unreasonably withheld);or action.
(c) no Indemnifying Party shall consent to the entry of any If a judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief is rendered against the Indemnified Party whichin any action covered by the indemnification hereunder, if successful, could materially interfere with or any lien attaches to any of the business, operations, assets, condition (financial or otherwise) or prospects assets of the Indemnified Party. After written notice by , the Indemnifying Party to immediately upon such entry or attachment shall pay such judgment in full or discharge such lien unless, at the Indemnified Party of its election to assume control Indemnifying Party’s expense and direction, an appeal is taken under which the execution of the defense judgment or satisfaction of the lien is stayed. If and when a final judgment is rendered in any such action, the Indemnifying Party shall not be liable to forthwith pay such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if judgment before the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available compelled to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurreddo so.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any Indemnifiable Loss or of the commencement of any claim is asserted suit, action or proceeding made or brought by any third party in Person who is not an Indemnitee (a “Third-Party Claim”) with respect of to which any party hereto may have indemnification is to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but any failure to so notify in no event later than twenty (20) Business Days after the Indemnifying Indemnitee’s receipt of notice of such Third-Party Claim. Such notice shall not relieve it from any liability describe the nature of the Third-Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be incurred by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third-Party Claim at such proceeding or claim, but Indemnifying Party’s expense and by such Indemnifying Party’s own counsel. If an Indemnifying Party elects not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of any Third-Party Claim, the Indemnitee may defend, compromise or settle such claim and to employ Third-Party Claim with counsel at its own expense to assist in selected by it, provided that, without the handling prior written consent of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party Indemnitee shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent agree to the entry of any judgment with respect to, or enter into any compromise or settlement of, any Third-Party Claim.
(b) If the Indemnifying Party undertakes, conducts and controls the conduct and settlement of such action or suit, (i) the Indemnifying Party shall not thereby permit to exist any Encumbrance upon any asset of the Indemnitee; (ii) the Indemnifying Party shall not consent to any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a complete release from all liability in Liability with respect of to such claimaction or suit to the Indemnitee; and
and (diii) the Indemnifying Party shall permit the Indemnitee to participate in such conduct or settlement at such Indemnitee’s expense and by such Indemnitee’s counsel.
(c) Subject to Section 8.3, any claim by an Indemnitee on account of an Indemnifiable Loss which does not be entitled to control constitute a Third-Party Claim (but a “Direct Claim”) shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice asserted by giving the Indemnifying Party reasonably prompt written notice thereof, in no event later than forty (40) Business Days after the Indemnitee becomes aware of such Direct Claim, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, of such Indemnifiable Loss. The Indemnifying Party shall have a period of forty (40) Business Days within which to respond to such Direct Claim. If the Indemnified Indemnifying Party of its election fails to assume control of the defense of any respond during such actionforty (40) Business Day period, the Indemnifying Party shall not be liable deemed to have accepted such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with claim and, subject to this Article VIII, shall promptly reimburse the defense thereof other than reasonable costs of investigation and of liaison counsel Indemnitee for the Indemnified Party; provided, however, that Indemnifiable Losses set forth in the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available Indemnitee’s notice.
(d) A failure to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim give timely notice as provided in this Section 7.3, 8.2 shall not affect the Indemnified rights or obligations of any Party shall have hereunder except to the right extent that the Party which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Duquesne Light Holdings Inc)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action or proceeding made or brought by any Person who is not a Party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than twenty (20) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement.
(i) If, unless within twenty (20) calendar days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 9.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(c) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within twenty (20) calendar days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or other similar circumstancesincurred by Indemnitee up to the date of such notice.
(d) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than twenty (20) calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of twenty (20) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such twenty (20) calendar day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(e) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof to the date or repayment at the "prime rate" as published in The Wall Street Journal) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(f) A failure to give timely notice as provided in this Section 7.39.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have which was entitled to receive such notice was actually prejudiced as a result of such failure; provided, however, that in any case any such notice must be given prior to the right to defend such claim in such manner as it may deem appropriate at the cost and expense expiration of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations relevant representation or defense, as and when bills are received or expenses incurredwarranty.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than ten (10) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement. 82
(i) If, unless within ten (10) calendar days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(ii) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or other similar circumstancesincurred by Indemnitee up to the date of said notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than ten (10) calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of thirty (30) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the publicly announced prime rate then in effect of Chase Manhattan Bank) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Electric Co)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party"a) shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the The Indemnifying Party shall may elect to assume and control the defense of any Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if: (i) the Claim does not relieve it from seek to impose any liability that it may have to Liability on the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claimmoney damages; and (ii) furnishes satisfactory evidence the Claim does not relate to the Indemnified Party’s relationship with any customer or employee.
(b) If the conditions of Section 6.6(a) are satisfied and the Indemnifying Party elects to assume and control the defense of a Claim, then: (i) the Indemnifying Party will not be liable for any settlement of such Claim effected without its financial ability consent, which consent shall be in the Indemnifying Party’s sole and absolute discretion if the Indemnifying Party is solely liable for all Losses in connection with such Claim, and which consent shall not be unreasonably withheld if both the Indemnifying Party and the Indemnified Party are liable for Losses in connection with such Claim; (ii) the Indemnifying Party may settle such Claim without the consent of the Indemnified Party if the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume for any Losses resulting from such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of)Claim, and the Indemnified Party shall be entitled to have sole control over, not unreasonably withhold its consent if both the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against Indemnifying Party and the Indemnified Party whichare liable for Losses in connection with such claim; and (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, if successful, could materially interfere provided that the Indemnified Party will be responsible for the fees and expenses of such counsel unless: (A) the Indemnifying Party has failed to adequately assume and actively conduct the defense of such Claim or to employ counsel with respect thereto; or (B) in the business, operations, assets, condition (financial or otherwise) or prospects reasonable opinion of the Indemnified Party. After written notice , a conflict of interest exists between the interests of the Indemnified Party and the Indemnifying Party that requires representation by separate counsel, in which case the fees and expenses of such separate counsel will be paid by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. .
(c) If the Indemnifying Party does not assume the control and defense of any Claim, the Indemnified Party may assume the exclusive right to defend, compromise or settle such Claim; provided (i) the Indemnifying Party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld) and (ii) the Indemnifying Party may employ separate counsel and participate in the defense thereof, but the Indemnifying Party will be responsible for the fees and expenses of such counsel.
(d) The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnified Party or the Indemnifying Party, as the case may be, reasonably apprised of the status of the defense of such claim as provided in any Claim the defense of which it is maintaining under this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party6.6, and each shall reasonably cooperate in good faith with the Indemnifying Party will promptly reimburse other with respect to the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement defense of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredany Claim.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tri-Isthmus Group, Inc.)
Defense of Claims. If any legal proceedings action or proceeding (including any governmental investigation or inquiry) shall be instituted brought or any claim is asserted by any third party or threatened to be brought or asserted against an indemnified Party in respect of which any party hereto indemnity may have be sought from an obligation to indemnify another partyindemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") indemnified Party shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to as promptly as practicable (and in any event within ten (10) Business Days after the Indemnified Party hereunder with respect to such proceeding service of the citation or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimsummons); provided, however, that the employment of such counsel shall be at the expense failure of the Indemnifying indemnified Party if to give timely notice hereunder shall relieve the Indemnified indemnifying Party determines in good faith that such participation is appropriate in light of defenses not available its indemnification obligations hereunder only if, and only to the Indemnifying Partyextent that, conflicts of interest such failure caused Buyer Damages or other similar circumstances;
Seller Damages (bas applicable) for which the Indemnifying indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not is obligated to be unreasonably withheld);
(c) no Indemnifying greater than they would have been had the indemnified Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of)given timely notice, and the Indemnified indemnifying Party promptly shall be entitled to have sole control over, assume the defense or settlement thereof, including the employment of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable counsel satisfactory to such Indemnified indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with and the defense thereof other than reasonable costs payment of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesall expenses. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Such indemnified Party shall have the right to defend employ separate counsel in any such claim action and to participate in the defense thereof, but the fees and expenses of such manner as it may deem appropriate at counsel shall be the cost and expense of such indemnified Party unless (a) the Indemnifying Partyindemnifying Party has agreed to pay such fees and expenses, (b) the indemnifying Party shall have failed to assume the defense of such action or proceeding or shall have failed to employ counsel reasonably satisfactory to such indemnified Party in any such action or proceeding in either case, promptly and no more than five (5) Business Days after the Indemnifying Party will promptly reimburse receipt of notice pursuant to the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement preceding sentence or such shorter period of fees, costs and expenses required by this Section 7.3 time as shall be made by periodic payments during reasonable under the course of the investigations or defensecircumstances, as and when bills are received or expenses incurred.or
Appears in 1 contract
Samples: Purchase and Sale Agreement
Defense of Claims. If (a) In order for any legal proceedings shall Indemnitee to be instituted or entitled to any claim is asserted by any third party indemnification provided for under this Agreement in respect of, arising out of which any party hereto may have an obligation to indemnify another partyor involving a Third Party Claim, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so Indemnitee must notify the Indemnifying Party in writing (and in reasonable detail) of the Third Party Claim promptly (and in no event later than thirty (30) calendar days) following receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not relieve it from any liability that it may have to affect the Indemnified Party other than indemnification provided hereunder except to the extent the Indemnifying Party is shall have been actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense as a result of such proceeding or claimfailure. Thereafter, but not the Indemnitee shall deliver to control the defenseIndemnifying Party, negotiation or settlement within ten (10) Business Days’ time after the Indemnitee’s receipt thereof, which control shall at copies of all times rest with written notices and documents (including court papers) received by the Indemnified Party, unless Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnitee notifies the Indemnifying Party (i) admits in writing its liability to the Indemnified of such Third Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseClaim, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and thereof and, if it so chooses, to employ assume the defense thereof with counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of selected by the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(bi) the Indemnifying Party acknowledges its obligation to indemnify the Indemnitee for any Indemnifiable Losses resulting from such Third Party Claim subject to the limitations of this Article VII, and (ii) such third Party Claim does not involve any Governmental Authority or request for equitable remedies (collectively, the “Defense Conditions”). The party defending such Third Party Claim shall obtain from time to time apprise the prior written approval other of the Indemnified status of the Third Party before entering into any settlement of such claim or ceasing to defend against such claim (Claim and shall furnish the other with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment documents and information filed or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability delivered in respect of connection with such claim; and
(d) , Liability or expense as the Indemnitee may reasonably request. Should the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election so elect to assume control of the defense of any such actiona Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Party hereunder the Indemnitee for any Legal Expenses legal expenses subsequently incurred by such Indemnified Party the Indemnitee in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Partythereof; provided, however, that if the Indemnifying Party fails to notify the Indemnitee of its election to assume the defense of the Third Party Claim within ten (10) Business Days after its receipt of written notice of such claim under paragraph (a) of this Section 7.4, or fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) Business Days after receiving written notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, or if any of the Defense Conditions cease to be satisfied for any reason, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all costs or expenses paid or incurred in connection therewith (subject to the limitations of this Article VII), and the Indemnitee shall have the right to compromise or settle such Third Party Claim with the consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). If the Indemnifying Party assumes such defense in accordance with this Section 7.4(b), the Indemnitee shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the Indemnifying Party), at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. Subject to the limitations of this Article VII, the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party determines has not assumed the defense thereof in good faith that accordance with this Section 7.4(b) (other than during any period in which the incurrence Indemnitee shall have failed to give notice of the same is appropriate Third Party Claim as provided above and the ten (10) Business Day period following the date of such notice). Each party shall cooperate in light the defense or prosecution of defenses not available such Third Party Claim. Such cooperation shall include the retention and (upon request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party, conflicts of interest ’s prior written consent (which consent shall not be unreasonably withheld or other similar circumstancesdelayed). If the Indemnifying Party does not assume control of assumes the defense of such claim as provided in this Section 7.3a Third Party Claim, the Indemnified Indemnitee shall agree to any settlement, compromise or discharge of a Third Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and Claim that the Indemnifying Party will promptly reimburse may recommend and that by its terms obligates the Indemnified Indemnifying Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during to pay the course full amount of the investigations or defenseliability in connection with such Third Party Claim and which releases the Indemnitee in connection, as and when bills are received or expenses incurredwith such Third Party Claim.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted or any claim is asserted by any third party in respect claim or investigation is made against either party that, if sustained, would give rise to a liability of which any the other party hereto may have an obligation to indemnify another partyfor indemnification under this Agreement (the “Indemnifying Party”), the party asserting such right to indemnity against whom the claim is made (the "“Indemnified Party"”) shall give promptly cause notice of the party from whom indemnity is sought (claim to be delivered to the "Indemnifying Party") written notice thereof within 30 days; provided, but any however, that, subject to Section 8.1, the failure to so notify the Indemnifying Party shall not relieve it the Indemnifying Party from any liability that it may have hereunder with respect to the Indemnified Party other than such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party is actually prejudiced therebyresults in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to it with respect to such claim. The Indemnifying Party shall have the right, at its option and expenseupon written notice delivered to the Indemnified Party within twenty (20) days thereafter, to participate in acknowledge that any Losses or CSSI Losses resulting from such claim or investigation are indemnifiable Losses or CSSI Losses, as applicable, of the Indemnified Party under Section 8.2, subject to the other provision of this Article 8, and to assume the defense of such proceeding or claim, but not to control including the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence employment of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by payment of the Indemnifying Party in the defense or settlement fees and disbursements of such matter; provided, however, that:
(a) counsel. In the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; providedevent, however, that the employment Indemnifying Party declines or fails to assume the defense of the claim or investigation within such counsel shall be at twenty (20) day period on the expense of terms provided above, or subsequently ceases to actually provide such defense, then the Indemnifying Party if shall pay the reasonable fees and disbursements of counsel for the Indemnified Party determines in good faith that such participation as incurred. In any claim or investigation for which indemnification is appropriate in light of defenses not available to being sought the Indemnified Party or the Indemnifying Party, conflicts whichever is not assuming the defense of interest such action, shall have the right to participate in such matter and to retain its own counsel at such party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the other similar circumstances;party reasonably apprised of the status of the defense of any matter and shall cooperate in good faith with each other with respect to the defense of any such matter.
(b) the No Indemnifying Party shall obtain may, without the prior written approval consent of the Indemnified Party before entering into Party, settle or compromise any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or enter into any settlement that does not include as consent includes an unconditional term thereof release of the giving by each claimant or plaintiff to each Indemnified Party of a release and its officers, directors, employees and Affiliates from all liability in respect arising out of such claim; and
, (dii) the Indemnifying Party shall does not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party shall be entitled to have sole control over, the defense or settlement of and (iii) does not contain any claim to the extent the claim seeks an equitable order, injunctionjudgment or term that in any manner affects, non-monetary restrains or other equitable relief against interferes with the business of the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects any of the Indemnified Party’s Affiliates. After written notice by the Indemnifying Party to the An Indemnified Party of its election to assume control of may not, without the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense prior written consent of the Indemnifying Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (x) such settlement, compromise or consent is paid by the Indemnified Party and includes an unconditional release of the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement and its officers, directors, employees and affiliates from all liability arising out of feessuch claim, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the investigations Indemnifying Party and (z) does not contain any equitable order, judgment or defenseterm that in any manner affects, as and when bills are received restrains or expenses incurredinterferes with the business of the Indemnifying Party or any of the Indemnifying Party’s Affiliates.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third entity that is not a party to this Agreement (a "Third Party Claim") against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in respect any event not later than ten (10) calendar days after receipt of which any party hereto may have an notice of such Third Party Claim; PROVIDED, HOWEVER, that the failure of the Indemnitee to notify the 34 Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify another partythe Indemnitee pursuant to this ARTICLE XV to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have be entitled, upon written notice to the Indemnified Party other than Indemnitee, to assume the extent investigation and defense thereof. Whether or not the Indemnifying Party is actually prejudiced thereby. The Indemnifying elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right, at its option right to employ separate counsel and expense, to participate in the investigation and defense thereof; PROVIDED, HOWEVER, that the Indemnitee shall pay the fees and disbursements of such proceeding or claim, but not to control separate counsel unless (i) the defense, negotiation or settlement thereof, which control shall at all times rest with employment of such separate counsel has been specifically authorized in writing by the Indemnified Indemnifying Party, unless (ii) the Indemnifying Party (i) admits in writing its liability has failed to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and Third Party Claim within a reasonable time after receipt of notice thereof, or (iii) the named parties to employ counsel at its own expense to assist the proceeding in the handling of which such claim; provided, howeverdemand, that the employment action or cause of such counsel shall be at the expense of action has been asserted include both the Indemnifying Party if and such Indemnitee and, in the Indemnified Party determines reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may be available to the Indemnitee that are in good faith that such participation is appropriate in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such for the fees and disbursements of more than one counsel for all Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Parties in connection with any one proceeding or any similar or related proceedings arising from the defense same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof other than reasonable costs the release of investigation the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of liaison counsel the Indemnifying Party's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnified Indemnitee, and including as an unconditional term the release of the Indemnitee from all liability in respect of such Third Party Claim, the claim may be settled and Indemnitee may not contest the matter. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party; provided's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any right or defenses against the Indemnitee, howeverthe Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be liable for such Legal Expenses if limited to the Indemnified Party determines in good faith lesser of (A) the amount of the settlement offer that the incurrence Indemnitee declined to accept plus the Indemnifiable Losses of the same is appropriate in light Indemnitee relating to such Third Party Claim through the date of defenses its rejection of the settlement offer or (B) the aggregate Indemnifiable Losses of the Indemnitee with respect to such claim.
(b) Any claim by an Indemnitee on account of an Indemnifiable Loss that does not available to result from a Third Party Claim must be asserted by giving the Indemnifying PartyParty reasonably prompt written notice thereof, conflicts but in any event not later than thirty (30) 35 calendar days after the incurrence thereof, and the Indemnifying Party will have a period of interest or other similar circumstancesthirty (30) calendar days within which to respond in writing to such claim. If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.3thirty (30) calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore in accordance with Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Section 7.3. The reimbursement ARTICLE XV.
(c) If, after the making of feesany Indemnification Payment, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course amount of the investigations Indemnifiable Loss to which such payment relates is reduced by recovery, settlement or defenseotherwise under any insurance coverage, as or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction (less any costs, expenses, premiums or Taxes incurred in connection therewith) will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any Indemnification Payment, the Indemnifying Party will, to the extent of such Indemnification Payment, be subrogated to all rights of the Indemnitee against any third party that is not an Affiliate of the Indemnitee in respect of the Indemnifiable Loss to which the Indemnification Payment relates; provided that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss, and when bills are received (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, all claims of the Indemnifying Party against any such third party on account of said Indemnification Payment will be subrogated and subordinated in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or expenses incurredeffect of any other provision of this ARTICLE XV, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than twenty (20) days after the Indemnitee’s receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party’s expense and by such Indemnifying Party’s own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee’s own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party’s liability pursuant to this Agreement.
(b) If, unless within twenty (20) days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof. Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs or other similar circumstancesexpenses paid or incurred by Indemnitee up to the date of said notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than twenty (20) days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of thirty (30) days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the publicly announced prime rate then in effect of Citibank) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Samples: Asset Purchase Agreement (Duke Energy Indiana, Inc.)
Defense of Claims. If The Indemnifying Party may elect to assume and control the defense of any legal proceedings shall be instituted or any claim is asserted by any third party in respect Claim, including the employment of which any party hereto may have an counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if (a) the Indemnifying Party acknowledges its obligation to indemnify another party, the party asserting Indemnified Party for any Losses resulting from such right Claim and provides reasonable evidence to indemnity the Indemnified Party of its financial ability to satisfy such obligation and (b) the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure Claim does not seek to so notify the Indemnifying Party shall not relieve it from impose any liability that it may have to or obligation on the Indemnified Party other than to the extent for money damages. If such conditions are satisfied and the Indemnifying Party is actually prejudiced thereby. The elects to assume and control the defense of a Claim, then (i) the Indemnifying Party shall will not be liable for any settlement of such Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the Indemnifying Party may settle such Claim without the consent of the Indemnified Party; and (iii) the Indemnified Party may employ separate counsel and participate in the defense thereof, but the Indemnified Party will be responsible for the fees and expenses of such counsel unless the Indemnifying Party has failed to adequately assume the defense of such Claim or to employ counsel with respect thereto, in which case the fees and expenses of such separate counsel will be paid by the Indemnifying Party. If such conditions are not satisfied, the Indemnified Party may assume and control the defense of the Claim; provided that the Indemnified Party may not settle any such Claim without the consent of the Indemnifying Party, which consent will not be unreasonably withheld, and the Indemnifying Party will have the right, at its option and expense, right to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredClaim.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any suit, action, or proceeding made or brought by any Person who is not a Party to this Agreement or any claim is asserted by any third party in Affiliate of a Party to this Agreement (a "Third Party Claim") with respect of to which any party hereto indemnification may have be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than twenty (20) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but not Third Party Claim shall be reasonably satisfactory to control the Indemnitee. The Indemnitee shall cooperate in good faith in such defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless .
(i) If within twenty (20) calendar days after an Indemnitee provides written notice to the Indemnifying Party of any Third Party Claim, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in Section 8.2 (ia) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal or other expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
thereof (a) the Indemnified Party shall be entitled to participate except as provided in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimSection 8.3(c)(i)); provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(ii) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within twenty (20) calendar days after its receipt of such notice, the Indemnifying PartyParty shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, conflicts the maximum liability of interest the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or other similar circumstancesincurred by Indemnitee up to the date of said notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party prompt written notice thereof, but in any event such notice shall not be given later than thirty (30) calendar days after the Indemnitees notice of such Direct Claim. Such notice shall state the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, and the Indemnifying Party shall have a period of thirty (30) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnitee will be free to seek enforcement of the defense of such claim its right to indemnification under this Agreement.
(d) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have which was entitled to receive such notice was actually prejudiced as a result of such failure, including by the right to defend such claim in such manner as it may deem appropriate at the cost and expense of Indemnitee incurring an Indemnifiable Loss without the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations 's consent or defense, as and when bills are received or expenses incurredknowledge.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Vermont Pure Holdings LTD/De)
Defense of Claims. If any legal proceedings shall a claim for Losses (a “Claim”) is to be instituted made by a Buyer Indemnified Party or any claim is asserted by any third party in respect of which any party hereto may have a Seller Indemnified Party (an obligation to indemnify another party, the party asserting such right to indemnity (the "“Indemnified Party") ”), such Indemnified Party shall give notice in writing (a “Claim Notice”) to (i) Buyer, in the party from whom indemnity is sought case of an indemnification claim pursuant to Section 9.2, or (ii) the "Sellers’ Representative, in the case of an indemnification claim pursuant to Section 9.3 (“Indemnifying Party") written ”), in either case as promptly as practicable after such Indemnified Party becomes aware of any fact, condition or event which may give rise to Losses for which indemnification may be sought under this ARTICLE IX, provided, however, that the failure of any Indemnified Party to give timely notice thereof within 30 days, but any failure to so notify the Indemnifying Party hereunder shall not relieve it from any liability that it may have affect rights to the Indemnified Party other than indemnification hereunder, except to the extent the Indemnifying Party is actually prejudiced therebyby such failure. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense After receipt of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence a notice of its financial ability to indemnify the Indemnified Party, in which casea Proceeding, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend the Indemnified Party against the Proceeding with counsel of its choice satisfactory to the Indemnified Party, unless the nature of the claim creates an ethical conflict or otherwise makes it inadvisable for the same counsel to represent the Indemnified Party and the Indemnifying Party, so long as (a) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Claim or Proceeding that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Claim or raised in the Proceeding, (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 Proceeding and fulfill its indemnification obligations hereunder, (c) the Proceeding involves only a claim for money damages and no other relief, and (d) the Indemnifying Party conducts the defense of the Proceeding in a reasonable manner. The Indemnifying Party shall not compromise or settle such claim in such manner as it Proceeding without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. In all other cases the Indemnified Party may deem appropriate defend the Claim or Proceeding with counsel of its choosing at the cost and reasonable expense of the Indemnifying Party. The Indemnified Party may, at its own cost, participate in the investigation, trial and defense of any such Proceeding defended by the Indemnifying Party and any appeal arising therefrom. The parties shall cooperate with each other in connection with any defense and in any notifications to insurers. If the Indemnifying Party fails to notify the Indemnified Party within the fifteen (15) day period that it will, or otherwise fails to, assume the defense of such Proceeding after receipt of notice hereunder, the Indemnified Party against which such Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such Proceeding with counsel of its own choosing at the reasonable expense of the Indemnifying Party and the Indemnifying Party will promptly reimburse shall have the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredright to participate therein at its own cost.
Appears in 1 contract
Samples: Stock Purchase and Investment Agreement (Marketaxess Holdings Inc)
Defense of Claims. If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a Party to this Agreement or any claim Representative of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than thirty (30) calendar days after the Indemnitee’s receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party’s expense and by such Indemnifying Party’s own counsel; provided, that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control Third Party Claim shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel be reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully Indemnitee. The Indemnitee shall cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that in such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the defense at such Indemnitee’s own expense. If an Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval elects not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionThird Party Claim, the Indemnifying Indemnitee may compromise or settle such Third Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with Claim over the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense objection of the Indemnifying Party, and which settlement or compromise shall conclusively establish the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with Party’s liability pursuant to this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredAgreement.
Appears in 1 contract
Defense of Claims. If any legal proceedings No right to indemnification under this Article shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, available unless the party asserting such right to indemnity Party seeking indemnification (the "Indemnified Party") shall give have given to the party from whom indemnity is sought Party obligated to provide indemnification (the "Indemnifying PartyIndemnitor") a written notice thereof within 30 days, but (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly after receipt of knowledge of the facts upon which such claim is based. A delay or failure to so notify the Indemnifying Party Indemnitor shall not relieve it from any liability the Indemnitor of its obligations hereunder only to the extent, if at all, that it may have to is prejudiced by reason of such delay or failure. Upon receipt by the Indemnitor of a Claim Notice from an Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to a claim of a third party, such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify Indemnitor shall assume the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through defense thereof with counsel reasonably satisfactory to such the Indemnified Party, and the Indemnified Party will fully shall cooperate in the defense or prosecution thereof and shall furnish such records, information, and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party Indemnitor in connection therewith. If the Indemnitor assumes such defense or settlement of such matter; providedas provided above, howeverthen the Indemnitor shall have the right in its sole discretion, that:
(a) to ettle any claim for which indemnification has been sought and is available hereunder, provided the Indemnified Party shall be entitled to participate in the defense is fully released from all known and unknown claims of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), third party and the Indemnified Party shall be entitled is not obligated to have sole control over, the defense perform any actions or settlement pay any money on account of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancessettlement. If the Indemnifying Party Indemnitor does not assume control of the such defense of such claim as provided in this Section 7.3above, then: (a) the Indemnified Party shall have the right to defend employ its own counsel in any such claim in such manner as it may deem appropriate at the cost case, and expense all of the Indemnifying Partyfees and expenses of such counsel shall be the responsibility of Indemnitor, and the Indemnifying Party will who shall promptly reimburse the Indemnified Party therefore fully for such expenses; and (b) the Indemnified Party shall have the right, in accordance with this Section 7.3. The reimbursement its sole discretion, to settle any claim for which indemnification has been sought and is available hereunder, at the expense of feesIndemnitor, who hereby agrees to promptly reimburse the Indemnified Party all costs and expenses required incurred by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredIndemnified Party with respect to such settlement.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than ten (10) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement.
(i) If, unless within ten (10) calendar days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(ii) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same is appropriate in light of defenses not available to the Indemnifying PartyIndemnitee, conflicts of interest or other similar circumstances. If the Indemnifying Party does shall not assume control enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the defense of such claim as provided in this Section 7.3, Indemnitee for which the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.Indemnitee is not entitled to
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Electric Co)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 45 calendar days after receipt of such notice of such Third Party Claim. Such notice will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof, and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the rightright to participate in, at its option and expenseor, by giving written notice to the Indemnitee, to participate assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
(b) If, within ten calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 10.4(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 10.4(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of if the Indemnifying Party if fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten calendar days after receiving written notice from the Indemnified Party determines in good faith Indemnitee that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) Indemnitee believes the Indemnifying Party shall obtain has failed to take such steps or if the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent has not undertaken fully to indemnify the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability Indemnitee in respect of such claim; and
(d) all Indemnifiable Losses relating to the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at matter, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Partydefense, and the Indemnifying Party will promptly reimburse be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course prior written consent of the investigations Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim which would lead to liability or defense, as and when bills are received create any financial or expenses incurred.other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to
Appears in 1 contract
Defense of Claims. If any legal proceedings No right to indemnification under this Article shall be instituted or any claim is asserted by any third party in respect of which any party hereto may available unless the Party seeking indemnification (the “Indemnified Party”) shall have an obligation given to indemnify another party, the party asserting such right Party obligated to indemnity provide indemnification (the "Indemnified Party"Indemnitor”) shall give the party from whom indemnity is sought (the "Indemnifying Party") a written notice thereof within 30 days, but (a "Claim Notice”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly after receipt of knowledge of the facts upon which such claim is based. A delay or failure to so notify the Indemnifying Party Indemnitor shall not relieve it from any liability the Indemnitor of its obligations hereunder only to the extent, if at all, that it may have to is prejudiced by reason of such delay or failure. Upon receipt by the Indemnitor of a Claim Notice from an Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to a claim of a third party, such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify Indemnitor shall assume the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through defense thereof with counsel reasonably satisfactory to such the Indemnified Party, and the Indemnified Party will fully shall cooperate in the defense or prosecution thereof and shall furnish such records, information, and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party Indemnitor in connection therewith. If the Indemnitor assumes such defense or settlement of such matter; providedas provided above, howeverthen the Indemnitor shall have the right in its sole discretion, that:
(a) to settle any claim for which indemnification has been sought and is available hereunder, provided the Indemnified Party shall be entitled to participate in the defense is fully released from all known and unknown claims of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), third party and the Indemnified Party shall be entitled is not obligated to have sole control over, the defense perform any actions or settlement pay any money on account of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancessettlement. If the Indemnifying Party Indemnitor does not assume control of the such defense of such claim as provided in this Section 7.3above, then: (a) the Indemnified Party shall have the right to defend employ its own counsel in any such claim in such manner as it may deem appropriate at the cost case, and expense all of the Indemnifying Partyfees and expenses of such counsel shall be the responsibility of Indemnitor, and the Indemnifying Party will who shall promptly reimburse the Indemnified Party therefore fully for such expenses; and (b) the Indemnified Party shall have the right, in accordance with this Section 7.3. The reimbursement its sole discretion, to settle any claim for which indemnification has been sought and is available hereunder, at the expense of feesIndemnitor, who xxxxxx agrees to promptly reimburse the Indemnified Party all costs and expenses required incurred by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredIndemnified Party with respect to such settlement.
Appears in 1 contract
Samples: Water Supply Agreement
Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third Person or Governmental Entity that is not a party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity this Agreement (the a "Indemnified PartyThird Party Claim") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 daysagainst such Indemnitee, but any failure with respect to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the which an Indemnifying Party is actually prejudiced thereby. The obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party shall have the rightreasonably prompt written notice thereof, at its option and expense, to participate but in the defense any event not later than 20 calendar days after receipt of notice of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimClaim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article 16 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof if such Indemnifying Party delivers a written agreement in form and substance satisfactory to the Indemnitee agreeing to indemnify the Indemnifying Party with respect to such Third Party Claim; provided that notwithstanding anything herein to the contrary, the Indemnifying Party shall have no right to assume or continue the defense of any Third Party Claim (and the Indemnitee shall have the exclusive right to defend it) if (i) the Indemnitee reasonably determines that the Indemnifying Party does not have sufficient financial resources to defend or discharge such Third Party Claim, (ii) if a conflict of interest is presented for the Indemnifying Party from defense of the Third Party Claim, (iii) the Indemnitee reasonably determines that an adverse determination would adversely affect the business operations of the Indemnitee in any material respect, or (iv) the Indemnifying Party is not vigorously defending such Third Party Claim, as reasonably determined by the Indemnitee. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within a reasonable time after receipt of notice thereof, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that such participation is appropriate may be available to the Indemnitee that are in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such for the fees and disbursements of more than one counsel for all Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Parties in connection with any one proceeding or any similar or related proceedings arising from the defense same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof other than reasonable costs the release of investigation the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of liaison counsel the Indemnifying Party's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnified Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party; provided, however, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be liable for such Legal Expenses if limited to the Indemnified Party determines in good faith lesser of (A) the amount of the settlement offer that the incurrence Indemnitee declined to accept or (B) the aggregate Indemnifiable Losses of the same is appropriate in light Indemnitee with respect to such claim.
(b) Any claim by an Indemnitee on account of defenses an Indemnifiable Loss that does not available to result from a Third Party Claim will be asserted by giving the Indemnifying Party, conflicts Party reasonably prompt written notice thereof and the Indemnifying Party will have a period of interest or other similar circumstances30 calendar days within which to respond in writing to such claim. If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.330 calendar day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse be deemed to have rejected such claim, in which event the Indemnified Party therefore in accordance with Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Section 7.3. The reimbursement Article 16.
(c) If, after the making of feesany Indemnification Payment, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course amount of the investigations Indemnifiable Loss to which such payment relates is reduced by recovery, settlement or defenseotherwise under any insurance coverage, as or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction (less any costs, expenses, premiums or Taxes incurred in connection therewith) will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any Indemnification Payment, the Indemnifying Party will, to the extent of such Indemnification Payment, be subrogated to all rights of the Indemnitee against any third party that is not an Affiliate of the Indemnitee in respect of the Indemnifiable Loss to which the Indemnification Payment relates; provided that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss, and when bills are received (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, all claims of the Indemnifying Party against any such third party on account of said Indemnification Payment will be subrogated and subordinated in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or expenses incurredeffect of any other provision of this Article 16, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of such notice of such Third Party Claim. Such notice by the Indemnitee will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
(b) If, within ten calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 5.4(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 5.4(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of if the Indemnifying Party if fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten calendar days after receiving written notice from the Indemnified Party determines in good faith Indemnitee that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) Indemnitee believes the Indemnifying Party shall obtain has failed to take such steps, the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Partydefense, and the Indemnifying Party will promptly reimburse be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course prior written consent of the investigations Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim which would lead to liability or defensecreate any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, as and when bills are received or expenses incurred.the Indemnifying Party will give written notice to the Indemnitee to
Appears in 1 contract
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the The Indemnifying Party shall not relieve it from may elect to assume and control the defense of any liability that it may have Loss Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement payment of such matter; providedexpenses related thereto, however, that:
if (a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party provides reasonable evidence to the Indemnified Party of its election financial ability to satisfy such indemnification obligation; (b) the Loss Claim does not seek to impose any liability or obligation on the Indemnified Party other than for money damages; and (c) the Loss Claim does not relate to the Indemnified Party's relationship with its customers or employees. If such conditions are satisfied and the Indemnifying Party elects to assume and control of the defense of any such actiona Loss Claim, then (i) the Indemnifying Party will not be liable for any settlement of such Loss Claim effected without its consent; (ii) the Indemnifying Party may settle such Loss Claim with the consent of the Indemnified Party, which consent shall not be liable to such unreasonably withheld; and (iii) the Indemnified Party hereunder for any Legal Expenses subsequently incurred by such may employ separate counsel and participate in the defense thereof, but the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel will be responsible for the Indemnified Party; provided, however, that fees and expenses of such counsel unless the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available has failed to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not adequately assume control of the defense of such claim as provided in this Section 7.3Loss Claim or to employ counsel with respect thereto. If such conditions are not satisfied, the Indemnified Party shall have may assume and control the right to defend defense of the Loss Claim; provided that the Indemnified Party may not settle any such claim in such manner as it may deem appropriate at Loss Claim without the cost and expense consent of the Indemnifying Party, which consent will not be unreasonably withheld (and the Indemnifying Party will promptly reimburse the Indemnified Party therefore not be liable for any Claims resulting from a settlement effected in accordance with violation of this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredclause).
Appears in 1 contract
Samples: Merger Agreement (Tyler Corp /New/)
Defense of Claims. 14.4.1 If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted by any third party in Third Party Claim against such Indemnitee, with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party shall have the rightreasonably prompt written notice thereof, at its option and expense, to participate but in the defense any event not later than thirty (30) calendar days after receipt of actual notice of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimClaim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party during the required notification period shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Section 14 to the extent that Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise); and provided, however, that the Indemnitee must, in any event, notify the Indemnifying Party prior to the Termination Date as required pursuant to Section 14.1 in order for such party to be indemnified. The Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof with counsel reasonably satisfactory to the Indemnitee. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof, provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within a reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and the Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses or claims that such participation is appropriate may be available to the Indemnitee that are in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such for the fees and disbursements of more than one counsel for all Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party Parties in connection with any one proceeding or any similar or related proceedings arising from the defense thereof other than reasonable costs of investigation and of liaison counsel for same general allegations or circumstances. Without the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence prior written consent of the same is appropriate in light of defenses not available to the Indemnifying PartyIndemnitee, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course part of the investigations or defenseIndemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim.
14.4.2 Any Direct Claim will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, as and when bills are received or expenses incurred.but in any event not later than thirty (30) calendar days after the
Appears in 1 contract
Samples: Asset Purchase Agreement (Northland Cable Properties Five LTD Partnership)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third Each party in respect of which any party hereto may have an obligation entitled to indemnify another party, the party asserting such right to indemnity indemnification under this Section 7 (the "Indemnified Party") shall give notice to the party from whom indemnity is sought required to provide indemnification (the "Indemnifying Party") written notice thereof within 30 dayspromptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, but any failure to so notify and shall permit the Indemnifying Party shall not relieve it from to assume the defense of any liability such claim or any litigation resulting therefrom, provided that it may have to the Indemnified Party other than to the extent counsel for the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party Party, who shall have the right, at its option and expense, to participate in conduct the defense of such proceeding claim or claimlitigation, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to be approved by the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Partywhose approval shall not unreasonably be withheld), and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to may participate in the such defense of at such claim and to employ counsel at its own expense to assist in the handling of such claimparty's expense; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval pay such expense if representation of the Indemnified Party before entering into by counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any settlement other party represented by such counsel in such proceeding, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 7 unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or ceasing to defend against such claim (litigation shall, except with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall the consent of each Indemnified Party, consent to the entry of any judgment or enter into any settlement that which does not include as an unconditional term thereof the giving by each the claimant or plaintiff to each such Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the claim or litigation. No Indemnifying Party shall be liable for such Legal Expenses if the required to indemnify any Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available with respect to the any settlement entered into without such Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred's prior consent.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives written notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim affiliate of a party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting Indemnitee will give such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify event not later than thirty (30) calendar days after the Indemnifying Indemnitee's receipt of notice of such Third Party Claim. Such notice shall not relieve it from any liability describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Indemnitee.
(b) The party defending the Third Party Claim shall (a) consult with the other than to throughout the extent pendency of the Indemnifying Third Party is actually prejudiced thereby. The Indemnifying Party shall have Claim regarding the rightinvestigation, at its option defense, settlement, compromise, trial, appeal or other resolution thereof; and expense(b) afford the other party the opportunity, by notice, to participate and be associated in the defense of any Third Party Claim through counsel chosen by such proceeding or claimother party, but not at its own expense, in the defense of any Third Party Claim as to which a party has elected to conduct and control the defense, negotiation or settlement defense thereof, which control . The parties shall at all times rest with cooperate in the Indemnified Party, unless defense of the Third Party Claim. The Indemnitee shall make available to the Indemnifying Party or its representatives all records and other materials reasonably required for use in contesting any Third Party Claim (i) admits in writing its liability to the Indemnified Party hereunder with respect subject to such proceeding or claim; confidentiality provisions as the Indemnitee may reasonably require) and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Partyshall furnish such testimony and attend such conferences, in which casediscovery proceedings, the Indemnifying Party hearings, trials and appeals as may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as be reasonably requested by the Indemnifying Party in connection therewith. If requested by the defense Indemnifying Party, the Indemnitee shall cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest or, if appropriate, in making any counterclaim against the Person asserting the claim or settlement demand, or any cross-complaint against any Person. The Indemnifying Party shall reimburse the Indemnitee for any expenses incurred by Indemnitee in cooperating with or acting at the request of such matter; provided, however, that:the Indemnifying Party.
(ac) If within ten (10) calendar days after an Indemnitee provides written notice to the Indemnified Indemnifying Party shall be entitled of any Third Party Claim the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to participate in assume the defense of such claim and to employ counsel at its own expense to assist Third Party Claim as provided in the handling last sentence of such claimSection 9.2(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) calendar days (unless waiting twenty (20) calendar days would prejudice the Indemnitee's rights) after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable expenses thereof. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of (a) any Third Party Claim with respect to Income Taxes or (b) any other Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer (other than with respect to Income Taxes) within ten (10) calendar days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will be the Indemnified Party determines in good faith that amount of such participation is appropriate in light of defenses not available settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the Indemnifying Partydate of such notice. Notwithstanding the foregoing, conflicts the Indemnitee shall have the right to pay, compromise, or settle any Third Party Claim (other than with respect to Income Taxes) at any time, provided that in such event the Indemnitee shall waive any right to indemnity hereunder unless the Indemnitee shall have first sought the consent of interest or other similar circumstances;
(b) the Indemnifying Party in writing to such payment, settlement, compromise and such consent was unreasonably withheld or delayed, in which event no claim for indemnity therefor hereunder shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; andwaived.
(d) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") will be asserted by giving the Indemnifying Party shall reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event not be entitled to control later than thirty (but shall be entitled to participate at its own expense in 30) calendar days after the defense of)Indemnitee becomes aware of such Direct Claim, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party will have a period of thirty (30) calendar days (unless waiting thirty (30) days would prejudice the Indemnitee's rights, in which case such period as would likely not prejudice the Indemnitee's rights, but in no event less than ten (10) days) within which to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable respond to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesDirect Claim. If the Indemnifying Party does not assume control respond within such thirty calendar day period, the Indemnifying Party will be deemed to have accepted such Direct Claim. If the Indemnifying Party rejects such Direct Claim, the Indemnitee will be free to seek enforcement of its rights to indemnification under this Agreement.
(e) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the prime rate then in effect of the defense Chase Manhattan Bank), will promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying Party will, to the extent of such claim indemnity payment, be subrogated to all rights of the Indemnitee against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided, however, that (i) the Indemnifying Party will then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against any such third party on account of said indemnity payment is hereby made expressly subordinated and subjected in right of payment to the Indemnitee's rights against such third party. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. Nothing in this Section 9.2(e) shall be construed to require any party hereto to obtain or maintain any insurance coverage.
(f) A failure to give timely notice as provided in this Section 7.39.2 will not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right party which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any suit, action or proceeding made or brought by any third party in Person who is not an Indemnitee (a "Third-Party Claim") with respect of to which any party hereto may have indemnification is to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but any failure to so notify in no event later than ten (10) Business Days after the Indemnifying Indemnitee's receipt of notice of such Third-Party Claim. Such notice shall not relieve it from any liability describe the nature of the Third-Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be incurred by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third-Party Claim at such proceeding or claim, but Indemnifying Party's expense and by such Indemnifying Party's own counsel. If an Indemnifying Party elects not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of any Third-Party Claim, the Indemnitee may defend, compromise or settle such claim and to employ Third-Party Claim with counsel at its own expense to assist in selected by it, provided that, without the handling prior written consent of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party Indemnitee shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent agree to the entry of any judgment with respect to, or enter into any compromise or settlement that of, any Third-Party Claim, which judgment, compromise or settlement does not include as an the unconditional term thereof release of the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; andIndemnifying Party.
(db) If, within twenty (20) Business Days after an Indemnitee gives written notice to the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an orderThird-Party Claim, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After such Indemnitee receives written notice by from the Indemnifying Party to the Indemnified that such Indemnifying Party of its election has elected to assume control of the defense of any such actionThird-Party Claim as provided in Section 8.2(a), then the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses costs, fees or expenses subsequently incurred by such Indemnified Party the Indemnitee in connection with the defense thereof other defense, compromise or settlement thereof.
(c) Subject to Section 8.3, any claim by an Indemnitee on account of an Indemnifiable Loss which does not constitute a Third-Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, in no event later than twenty (20) Business Days after the Indemnitee becomes aware of such Direct Claim, stating the nature of such claim in reasonable costs detail and indicating the estimated amount, if practicable, of investigation such Indemnifiable Loss and the Indemnifying Party shall have a period of liaison counsel for twenty (20) Business Days within which to respond to such Direct Claim. If the Indemnified Party; providedIndemnifying Party fails to respond during such twenty (20) Business Day period, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available deemed to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of have accepted such claim and, subject to this Article VIII, shall promptly reimburse the Indemnitee for the Indemnifiable Losses set forth in the Indemnitee's notice.
(d) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Atlantic City Electric Co)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person who is not a party to this Agreement or any claim Affiliate of a Party to this Agreement (a "Third Party Claim") with respect to which indemnification is asserted by any third party in respect of which any party hereto may have to be sought from an obligation to indemnify another partyIndemnifying Party, the party asserting such right to indemnity (the "Indemnified Party") Indemnitee shall give the party from whom indemnity is sought (the "such Indemnifying Party") Party reasonably prompt written notice thereof within 30 daysthereof, but in any failure to so notify the Indemnifying Party event such notice shall not relieve it from any liability be given later than ten (10) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that it has been or may have to be sustained by the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyIndemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such proceeding or claim, but Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to control assume the defensedefense of any Third Party Claim, negotiation the Indemnitee may compromise or settlement thereofsettle such Third Party Claim over the objection of the Indemnifying Party, which control settlement or compromise shall at all times rest with conclusively establish the Indemnified Indemnifying Party's liability pursuant to this Agreement.
(i) If, unless within ten (10) calendar days after an Indemnitee provides written notice to the Indemnifying Party (i) admits of any Third Party Claims, the Indemnitee receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which caseSection 8.2(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing fail to take reasonable steps necessary to defend against diligently such claim Third Party Claim within twenty (with such approval not to be unreasonably withheld);
(c20) no Indemnifying Party shall consent to calendar days after receiving notice from the entry of any judgment or enter into any settlement Indemnitee that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) Indemnitee believes the Indemnifying Party shall not be entitled has failed to control (but shall be entitled to participate at take such steps, the Indemnitee may assume its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if all reasonable expenses thereof.
(ii) Without the Indemnified Party determines in good faith that the incurrence prior written consent of the same Indemnitee, the Indemnifying Party shall not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is appropriate in light not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of defenses a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not available entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to theIndemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such notice, the Indemnifying Party shall be relieved of its obligations to defend such Third Party Claim and the Indemnitee may contest or defend such Third Party Claim. In such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or incurred by Indemnitee up to the date of said notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying PartyParty reasonably prompt written notice thereof, conflicts stating the nature of interest or other similar circumstancessuch claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than ten (10) calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of thirty (30) calendar days within which to respond to such Direct Claim. If the Indemnifying Party does not assume control respond within such thirty (30) calendar day period, the Indemnifying Party shall be deemed to have accepted such claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free to seek enforcement of its right to indemnification under this Agreement.
(d) If the defense amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such claim reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof at the publicly announced prime rate then in effect of Chase Manhattan Bank) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 7.38.2 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Indemnified Party shall have the right which was entitled to defend receive such claim in notice was actually prejudiced as a result of such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredfailure.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Electric Co)
Defense of Claims. If any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 daysthereof, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right, at its option and expense, to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of (A) any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified PartyParty or (B) any claim relating to Taxes. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore therefor in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurred.
Appears in 1 contract
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion or commencement of any claim is asserted by any third party in Third Party Claim against such Indemnitee with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of such notice of such Third Party Claim. Such notice will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the rightright to participate in, at its option and expenseor, by giving written notice to the Indemnitee, to participate assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
(b) If, within ten (10) calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 5.3(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 5.3(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) calendar days after receiving written notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnitee in respect of all Indemnifiable Losses relating to the matter, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10) calendar days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in -41- 42 such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will not exceed the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement amount of such claim settlement offer, plus costs and expenses paid or ceasing to defend against incurred by the Indemnitee through the end of such claim ten (with such approval not to be unreasonably withheld);10) calendar day period.
(c) no Indemnifying Party shall consent to the entry Any claim by an Indemnitee on account of any judgment or enter into any settlement that an Indemnifiable Loss which does not include as an unconditional term thereof the result from a Third Party Claim (a "Direct Claim") will be asserted by giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall reasonably prompt written notice thereof, but in any event not be entitled to control later than twenty (but shall be entitled to participate at its own expense in 20) calendar days after the defense of)Indemnitee becomes aware of such Direct Claim, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party will have a period of twenty (20) calendar days within which to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable respond in writing to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesDirect Claim. If the Indemnifying Party does not assume control so respond within such twenty (20) calendar day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of the defense of such claim this Article VI.
(d) A failure to give timely notice or to include any specified information in any notice as provided in this Section 7.3, Sections 5.2(a) or 5.2(b) will not affect the Indemnified Party shall have rights or obligations of any party hereunder except and only to the right extent that such failure is actually prejudicial to defend such claim in such manner as it may deem appropriate at the cost and expense rights or obligations of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 .
(e) Any liability for any indemnification hereunder shall be made net of any insurance proceeds received by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredan Indemnitee with respect to any Third Party Claim.
Appears in 1 contract
Samples: Master Agreement (Equity Inns Inc)
Defense of Claims. (a) If any legal proceedings shall be instituted Indemnitee receives notice of the assertion or commencement of any claim is asserted by any third party Third Party Claim against such Indemnitee in respect of which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced therebyobligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 days after receipt of such notice of such Third Party Claim. Such notice will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall will have the right, at its option and expense, right to participate in or, by giving written notice to the Indemnitee, to assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense.
(b) If, within ten days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 11.4(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such proceeding or claim, but not to control Third Party Claim as provided in the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence last sentence of its financial ability to indemnify the Indemnified Party, in which caseSection 11.4(a), the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested not be liable for any legal expenses subsequently incurred by the Indemnifying Party Indemnitee in connection with the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimthereof; provided, however, that if the employment Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnitee in respect of all Indemnifiable Losses relating to the matter, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten days after its receipt of such counsel shall be at notice, the expense Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party if as to such Third Party Claim will not exceed the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement amount of such claim settlement offer, plus costs and expenses paid or ceasing to defend against incurred by the Indemnitee through the end of such claim (with such approval not to be unreasonably withheld);ten-day period.
(c) no Indemnifying Party shall consent A failure to give timely notice or to include any specified information in any notice as provided in Section 11.4(a) or 11.4(b) will not affect the rights or obligations of any party hereunder except and only to the entry of any judgment or enter into any settlement that does not include extent that, as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect result of such claim; andfailure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise damaged as a result of such failure.
(d) the The Indemnifying Party shall not be entitled will have a period of 30 days within which to control (but shall be entitled respond in writing to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks by an order, injunction, non-monetary or other equitable relief against the Indemnified Indemnitee on account of an Indemnifiable Loss that does not result from a Third Party which, if successful, could materially interfere with the business, operations, assets, condition Claim (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstancesa "Direct Claim"). If the Indemnifying Party does not assume control of the defense of so respond within such claim as provided in this Section 7.330- day period, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnitee will be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Article XI.
(e) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an Indemnity Payment, is reduced by recovery, settlement, or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement, or payment by or against any other person, the amount of such reduction, less any costs, expenses, premiums, or taxes incurred in connection therewith will promptly reimburse be repaid by the Indemnified Indemnitee to the Indemnifying Party. Upon making any Indemnity Payment the Indemnifying Party therefore in accordance with this Section 7.3. The reimbursement will, to the extent of feessuch Indemnity Payment, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course subrogated to all rights of the investigations Indemnitee against any third person that is not an affiliate of the Indemnitee in respect of the Indemnifiable Loss to which the Indemnity Payment relates; provided, however, that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against any such third person on account of such Indemnity Payment will be subrogated and subordinated in right of payment to the Indemnitee's rights against such third person. Without limiting the generality or defenseeffect of any other provision hereof, as each such Indemnitee and when bills are received or expenses incurredIndemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
Appears in 1 contract
Samples: Asset Purchase Agreement (Metawave Communications Corp)
Defense of Claims. If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third entity that is not a party in to this Agreement (a “Third Party Claim”) against such Indemnitee, with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party shall have the rightreasonably prompt written notice thereof, at its option and expense, to participate but in the defense any event not later than ten (10) calendar days after receipt of notice of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimClaim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within a reasonable time after receipt of notice thereof, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that such participation is appropriate may be available to the Indemnitee that are in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party the fees and disbursements of more than one counsel for all Indemnitees in connection with any one proceeding or any similar or related proceedings arising from the defense thereof other than reasonable costs same general allegations or circumstances. Without the prior written consent of investigation and of liaison counsel for the Indemnified Party; providedIndemnitee, however, that the Indemnifying Party shall be liable for such Legal Expenses if will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the Indemnified Party determines in good faith that the incurrence part of the same Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is appropriate made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in light writing of defenses not available to the Indemnifying Party, conflicts ’s willingness to accept the settlement offer and pay the amount called for by such offer without reservation of interest any rights or other similar circumstances. If defenses against the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3Indemnitee, the Indemnified Party shall have the right Indemnitee may continue to defend contest such claim in such manner as it may deem appropriate at the cost and expense claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 has an obligation to pay hereunder shall be made by periodic payments during limited to the course lesser of (A) the sum of the investigations settlement offer that the Indemnitee declined to accept plus any Indemnifiable Losses in excess of those relating to the Third Party Claim through the date of its rejection of the settlement offer or defense, as and when bills are received or expenses incurred(B) the aggregate Indemnifiable Losses of the Indemnitee with respect to such claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mdu Communications International Inc)
Defense of Claims. If any legal proceedings shall be instituted or Indemnitee receives notice of the assertion of any claim is asserted or of the commencement of any action or proceeding by any third entity that is not a party in to this Agreement (a “Third Party Claim”) against such Indemnitee, with respect of to which any party hereto may have an obligation to indemnify another party, the party asserting such right to indemnity (the "Indemnified Party") shall give the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 days, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party other than to the extent the Indemnifying Party is actually prejudiced thereby. The obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party shall have the rightreasonably prompt written notice thereof, at its option and expense, to participate but in the defense any event not later than ten (10) calendar days after receipt of notice of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Third Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claimClaim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel shall be at has been specifically authorized in writing by the expense of Indemnifying Party, (ii) the Indemnifying Party if has failed to assume the Indemnified defense of such Third Party determines Claim within a reasonable time after receipt of notice thereof, or (iii) the named parties to the proceeding in good faith which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that such participation is appropriate may be available to the Indemnitee that are in light of defenses not conflict with those available to the Indemnifying Party, conflicts of interest or other similar circumstances;
(b) . Notwithstanding the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent the claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such actionforegoing, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party the fees and disbursements of more than one counsel for all Indemnitees in connection with any one proceeding or any similar or related proceedings arising from the defense thereof other than reasonable costs same general allegations or circumstances. Without the prior written consent of investigation and of liaison counsel for the Indemnified Party; providedIndemnitee, however, that the Indemnifying Party shall be liable for such Legal Expenses if will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the Indemnified Party determines in good faith that the incurrence part of the same Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is appropriate made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in light writing of defenses not available to the Indemnifying Party, conflicts 's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of interest any rights or other similar circumstances. If defenses against the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3Indemnitee, the Indemnified Party shall have the right Indemnitee may continue to defend contest such claim in such manner as it may deem appropriate at the cost and expense claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 has an obligation to pay hereunder shall be made by periodic payments during limited to the course lesser of (A) the sum of the investigations settlement offer that the Indemnitee declined to accept or defense, as and when bills are received or expenses incurred(B) the aggregate Indemnifiable Losses of the Indemnitee with respect to such claim.
Appears in 1 contract
Defense of Claims. If any legal proceedings shall be instituted Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or Proceeding made or brought by any Person who is not a Party to this Agreement or any Affiliate of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party, the following terms and provisions shall apply:
(i) The Indemnitee shall give written notice to the Indemnifying Party of any Third Party Claim which might give rise to a claim for indemnification, which notice shall state the nature and basis of the assertion and the amount thereof, to the extent known, provided, however, that no delay on the part of the Indemnitee in giving notice shall relieve the Indemnifying Party of any obligation to indemnify unless (and then solely to the extent that) the Indemnifying Party is asserted prejudiced by such delay and then only to the extent so prejudiced.
(ii) If any third party in Third Party Claim is brought against an Indemnitee with respect of to which any party hereto the Indemnifying Party may have an obligation to indemnify another partyindemnify, the party asserting Third Party Claim shall be defended by the Indemnifying Party and such right to indemnity defense shall include all proceedings and appeals which counsel for the Indemnitee shall deem reasonably appropriate.
(iii) Notwithstanding the "Indemnified Party") shall give provisions of the party from whom indemnity is sought (the "Indemnifying Party") written notice thereof within 30 daysprevious subsection, but any failure to so notify until the Indemnifying Party shall not relieve it from have assumed the defense of any liability that it may have to such Third Party Claim, the Indemnified Party other than to defense shall be handled by the extent Indemnitee. Furthermore, (i) if the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party a party to the action and the Indemnitee shall have the right, at its option and expense, reasonably concluded that there are likely to participate in the defense of such proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Party, unless the Indemnifying Party (i) admits in writing its liability be defenses available to the Indemnified Party hereunder with respect Indemnitee that are different from or in addition to such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to indemnify the Indemnified Party, in which case, the Indemnifying Party may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party, and the Indemnified Party will fully cooperate as reasonably requested by the Indemnifying Party in the defense or settlement of such matter; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; provided, however, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not those available to the Indemnifying Party and in conflict with the interests of the Indemnifying Party, conflicts of interest or other similar circumstances;
; (bii) if the Indemnifying Party shall obtain fails to defend and fulfill its indemnification obligation with respect to the prior written approval Third Party Claims; or (iii) if the Third Party Claim involves a customer, competitor or a supplier of the Indemnified Party before entering into any settlement of Business, and Xxxxx Xxxxxxxx Xxxxxxxx has either voluntarily terminated her employment with Buyer (as defined in the APA) or has been terminated by Buyer for Cause (as such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheldterm is defined in the Xx. Xxxxxxxx Xxxxxxxx’x Employment Agreement referenced in Section 8.7 hereof);
(c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim; and
(d) , then the Indemnifying Party shall not be entitled to control (but assume the defense of the Third Party Claim and the defense shall be entitled handled by the Indemnitee. If the defense of the Third Party Claim is handled by the Indemnitee under the provisions of this subsection, the Indemnifying Party shall pay all legal and other expenses reasonably incurred by the Indemnitee in conducting such defense.
(iv) In any Third Party Claim defended by the Indemnifying Party (i) the Indemnitee shall have the right to participate be represented by advisory counsel and accountants, at its own expense in expense, (ii) the defense of)Indemnifying Party shall keep the Indemnitee fully informed as to the status of such Third Party Claim at all stages thereof, whether or not the Indemnitee is represented by its own counsel, (iii) the Indemnifying Party shall make available to the Indemnitee, and its attorneys, accountants and other representatives, all books and records of the Indemnified Indemnifying Party relating to such Third Party Claim and (iv) the parties shall render to each other such assistance as may be entitled reasonably required in order to have sole control overensure the proper and adequate defense of the Third Party Claim.
(v) In any Third Party Claim, the defense or party defending the same shall not make any settlement of any claim without the prior written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned. Without limiting the generality of the foregoing, it shall not be deemed unreasonable to the extent the claim seeks an order, injunction, non-monetary withhold consent to a settlement involving injunctive or other equitable relief against the Indemnified Party whichIndemnitee or its assets, if successful, could materially interfere with the employees or business, operations, assets, condition (financial or otherwise) relief which the Indemnitee reasonably believes could establish a custom or prospects of the Indemnified Party. After written notice by the Indemnifying Party precedent which will be adverse to the Indemnified Party best interests of its election to assume control of the defense of any such action, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any Legal Expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison counsel for the Indemnified Party; provided, however, that the Indemnifying Party shall be liable for such Legal Expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. If the Indemnifying Party does not assume control of the defense of such claim as provided in this Section 7.3, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be made by periodic payments during the course of the investigations or defense, as and when bills are received or expenses incurredcontinuing business.
Appears in 1 contract
